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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


71  W    / 


Walter  a.  McclUre 


p: 


THE 


DARTMOUTH  COLLEGE 


CAUSES 


AND    THE 


SUPREME  COURT  OF  THE  UNITED  STATES. 


.f^*^ 


By   JOHN   M.   SHIRLEY.     ^^^^^ 


ST.  LOUIS: 
REVIEW  PUBLISHING   CO. 

1895. 


6jA  jm-c{ 


fV'f^ 


Entered  according  to  Act  of  Congress,  in  the  year  1879,  by 

JOHN  M.  SHIRLEY, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


^ 


Mt  aim  has  been  to  put  the  reader  in  the  place  of  the  great 
actors  in  these  controversies.  These  pages  were  penned  in  the 
fierce  gallopade  of  a  busy  life,  within  earshot,  as  it  were,  of 
the  paternal  homes  of  the  Websters  and  Bartletts,  those  of 
Thomas  W.  Thompson,  Worcester,  and  their  compeers,  within 
the  shadow  of  the  lone  mountain  they  loved  so  well,  upon  the 
historic  ground  so  often  trodden  by  them,  and  in  the  midst  of  the 
traditions  relating  to  these  causes  and  their  origin.  Besides  those 
referred  to  in  text  and  notes,  I  am  indebted  to  Jeremiah  Smith, 
late  one  of  the  justices  of  the  Supreme  Judicial  Court  of  New 
Hampshire,  and  son  of  the  late  Chief  Justice  Smith,  for  a  mass 
of  valuable  papers ;  James  Barrett,  of  the  Supreme  Court  of 
Vermont,  for  the  use  of  copies  of  letters  of  Kent  to  Marsh, 
Hopkinson  to  Marsh,  and  others  to  which  no  special  reference 
has  been  made  ;  Charles  H.  Bell,  President  of  the  New  Hampshire 
Historical  Society ;  and  the  late  Robert  Means  Mason,  for 
verifying  copies  of  the  ' '  Harvey-Webster  Papers ' '  and  ' '  Mason 
Papers;"  Professor  Edwin  D.  Sanborn,  of  Dartmouth  College, 
for  Webster's  original  notes  of  the  arguments  at  Exeter  and 
Washington,  his  MS.  argument,  the  brief  of  Hopkinson  as  written 
out  for  publication  by  Webster,  and  letters  of  Hopkinson  and 
President  Brown  to  Webster ;  the  New  Hampshire  Historical 
Society,  for  placing  their  treasures,  and  particularly  the  "Farrar 
Papers,"  at  my  service  ;  and  William  H.  Duncan,  for  the  use  of 
the  "Olcott  Papers." 

J.   M.   S. 

AxX)OVER,  N.  H.,  Oct.  1,  1879. 


CHAPTER    I. 

THE  CAUSES  SUMMARIZED— AVTEBSTER'S  REASONS  FOR  BRING- 
ING SUITS  IN  THE  FEDERAL  COURTS —  CHANGES  IN  THE 
CHxlRTER  PROPOSED  BY  TRUSTEES  AND  OTHERS  — EFFECT 
OF  THE  DECISION— THE  SUPREME  COURT  OF  THE  UNITED 
STATES. 

There  were  five  civil  causes.  Four  were  brought  to  test 
the  validity  of  the  act  of  the  Legislature  of  New  Hamp- 
shire of  June  27,  1816,  "to  amend  the  charter,  and  enlarge 
and  improve  the  corporation  of  Dartmouth  College,"  and 
the  supplementary  acts  of  December  18  and  26,  1816. 

The  College  was  located  upon  the  Connecticut  Eiver,  at 
Hanover,  in  the  county  of  Grafton.  Haverhill  on  the  Con- 
necticut, and  Plymouth  on  the  Pemigewasset,  were  then,  as 
now,  the  half  shire-towns  of  that  county.  The  Court  of 
Common  Pleas  sat  at  Haverhill  on  February  25,  and  at 
Plymouth  on  September  9,  1817  ;  and  the  Superior  Court 
sat  at  the  same  places  respectively  on  May  20  and  Novem- 
ber 4,  1817. 

The  first  action  was  "  trespass  on  the  case,"  brought  by 
"The  Trustees  of  Dartmouth  College,"  in  the  Common 
Pleas,  against  William  H.  Woodward,  chief  justice  of  that 
court,  for  converting,  etc.,  on  October  7,  1816,  "divers 
books  &  records  in  writing,  containing  the  doings  &  trans- 
actions of  sd.  trustees  from  the  time  of  their  first  meeting 
as  a  corporation  until  sd.  seventh  day  of  October,  &  also 
of  the  orio^inal  charter  of  sd.  college  and  the  common  seal 
of  sd.  college,  &  also  of  all  the  books  of  account  containing 
pharges  in  favor  of  sd.  trustees,  &  all  the  leases,  bonds,  notes 
&  other  assurances  in  writing,"  etc.  The  mandate  was,  to 
attach  the  defendant's  goods  to  the  value  of  $50,000,  "  and 

(1) 


DARTMOUTH  COLLEGE  CAUSES. 


for  want  thereof,"  to  arrest  his  body.  The  writ  was  dated 
February  8,  and  served  February  10,  1817,  by  "attaching 
a  chair,"  "  valued  at  one  dollar,"  and  giving  <'  him  a  sum- 
mons for  his  appearance  at  court."  The  case  was  entered 
at  the  February  term,  1817. 

The  defendant  filed  the  formal  plea  of  "not  guilty," 
"  reserving  liberty  to  waive  this  plea  &  plead  anew,  as  well 
in  abatement  as  in  bar,  at  the  Superior  Court."  The  plain- 
tiffs, "  agreeing  to  the  reservation  aforesaid,  &  reserving  lib- 
erty to  waive  this  replication  &  reply  anew  at  the  Superior 
Court,"  replied  "that  the  plea  aforesaid,  in  manner  & 
form  aforesaid  pleaded,  &  the  matters  therein  contained,  are 
not  sufficient  in  law  to  bar  the  plfs.,"  etc.,  and  prayed 
"judgment  for  their  damages  and  costs." 

The  cause  could  not  properly  be  tried  before  the  defend- 
ant, and  these  formal  pleadings  were  filed  by  an  arrange- 
ment between  the  counsel,  for  the  purpose  of  taking  the 
cause  directly  to  the  highest  court  of  the  State.  Accord- 
ingly it  was  entered  at  the  May  term,  1817,  of  the  Supe- 
rior Court.  The  plaintiffs  amended  their  writ  by  striking 
out  the  declaration  and  substituting  a  new  one.  It  was 
twice  argued.  The  report  states  that  "  the  cause  was  sub- 
mitted to  the  decision  of  the  court  upon  a  statement  of 
facts,  *  *  *  and  it  was  agreed  that  if  either  party 
should  desire  it,  the  statement  of  facts  should  be  turned  into 
a  special  verdict,  in  order  that  the  case  might  be  carried  to 
the  Supreme  Court  of  the  United  States."  (1  N.  H.  111.) 
The  precise  facts  will  appear  hereafter. 

This  case  is  reported  in  1  N.  H.  111-138,  and  in  1  Wheat. 
518-715.  (4  Curtis's  Dec.  4G3-534.)  The  case  in  both 
courts  is  also  reported  at  length  in  a  volume  of  about  four 
hundred  pages,  by  Timothy  Farrar,  the  son  of  one  of  the 
plaintiffs,  the  former  partner  of  Mr.  Webster,  and  one 
of  the  counsel  in  the  cause,  from  whose  report  that  of 
Wheaton  was  taken. 

The  United  States  Cu-cuit  Court,  in  which  three  of  these 


THE    CIVIL    SUITS.  3 

cases  were  brought,  sat  in  the  extreme  south-eastern  corner 
of  the  State,  at  Portsmouth  and  Exeter,  on  May  1  and 
October  1,  1818,  respectivel}^ 

The  second  was  a  suit  in  ejectment  (for  $3,000),  brought 
in  this  court  by  Horace  Hatch,  of  Norwich,  Vermont,  against 
Richard  Lang,  of  Hanover,  for  a  lot  of  hmd  about  one  mile 
east  of  the  College.  This  writ  was  dated  March  9,  1818. 
In  form,  a  special  verdict  about  twenty  pages  in  length 
was  rendered  at  the  October  term,  1818,  and  the  case  went, 
upon  a  certificate  of  the  division  of  opinion  between  the 
judges,  to  the  Supreme  Court  of  the  United  States. 

The  third  was  a  similar  suit  of  ejectment  in  the  same 
court  (for  $2,000),  brought  by  David  Pierce,  of  Wood- 
stock, Vermont,  ex  dem.  Job  Lyman,  on  March  27,  1818, 
against  Benjamin  Gilbert,  of  Hanover.  The  tmstees  of 
the  University  were  vouched  in  at  the  Oafcober  term,  1818, 
and  made  defendants,  and  the  cause  went  to  the  Supreme 
Court  on  a  similar  verdict. 

The  fourth  was  a  similar  suit  (for  $3,000),  brought  by 
Charles  Marsh,  also  of  Woodstock,  one  of  the  trustees,  and 
one  of  the  plaintiffs  in  the  first  suit  in  the  State  court, 
against  William  Allen  (  afterwards  the  plaintiff  in  the  Bow- 
doin  College  case,  and  the  son-in-law  of  Dr.  John  Wheelock, 
the  former  president  of  the  College  and  University),  Henry 
Hutchinson,  and  Aliimaz  B.  Simpson,  on  March  27,  1818, 
in  the  same  court,  with  a  like  result. 

Mr.  Mason  advised  the  bringing  of  another  suit,  to  test 
the  right  to  the  libraries,  etc.,  but  the  clerks  fail  to  find 
any  trace  of  it  upon  the  files  of  the  courts. 

The  criminal  prosecutions  instituted  in  the  name  of  the 
State,  which  grew  out  of  these  troubles,  were  fruitless,  and 
seemingly  had  no  influence  upon  the  current  of  the  others. 

The  fifth  was  instituted  on  September  23,  1819,  by  "Wil- 
liam Allen,  clerk,  &  Maria  AVheelock,  widoAV,"  "executors 
of  the  last  will  &  testament  of  John  Wheelock,"  against 


4  DARTMOUTH  COLLEGE  CAUSES. 

the  College  for  $10,000,  for  the  services,  etc.,  of  Wheelock 
as  president  of  the  College.  It  was  entered  at  the  Novem- 
ber term,  1819,  of  the  Superior  Court,  at  Plymouth.  At 
the  May  term,  1820,  judgment  was  rendered  for  the  plain- 
tiifs  for  $7,886.41  damages,  and  for  their  costs.  This  case 
was  supposed  to  involve,  upon  one  point,  the  same  question 
as  the  others. 

The  suits  in  the  United  States  Circuit  Court  were  insti- 
tuted by  the  special  direction  of  Mr.  Webster.  His  reasons 
were  twofold.  The  first  suit  was  not  instituted  by  him,  but 
by  Mills  Olcott,  of  Hanover,  secretary,  etc.,  of  the  board 
of  trustees.     Webster  came  into  it  "at  the  eleventh  hour." 

The  writ  of  error  in  this  case  was  brought  as  a  "  forlorn 
hope."  It  raised  but ' '  a  single  point,"  — whether  the  legis- 
lative acts  impaired  the  obligation  of  contracts.  Upon  the 
whole  case,  Webster  had  but  little  faith  in  that  point. 

Webster  was  not  a  learned  man,  much  less  a  learned 
lawyer ;  but  he  was  a  great  man.  A  sort  of  half  justice 
has  been  done  to  his  purely  intellectual  gifts  ;  a  century 
hence  ample  justice  may  be  done  them.  Few  gave  him 
credit  for  tact  and  management ;  but  no  American  equalled 
him  in  his  knowledge  of  men,  and  his  power  to  overawe 
and  persuade  judges  as  well  as  others.  No  skilled  per- 
former ever  handled  the  keys  of  his  instrument  with  any 
thing  like  the  consummate  skill  and  art  with  which  Webster, 
when  hard  pressed,  played  upon  the  prejudices,  passions, 
and  sympathies,  as  well  as  the  understanding,  of  men.  He 
turned  his  knowledge  of  genealogy  into  a  system  of  philoso- 
phy. He  knew  Judge  Marshall,  his  court,  their  prejudices, 
and  their  antecedents. 

His  conviction  was  that  Marshall  would  set  aside  these 
acts,  upon  the  ground  taken  by  Mason  in  his  argument  at 
Exeter,  that  they  were  "  not  within  the  general  scope  of  leg- 
islative power,"  if  that  point  could  be  got  before  the  court. 

The  first  reason  Mr.  Webster  confided  to  those  who  were 


WEBSTER HIS    PURPOSE.  & 

close  to  his  heart,  as  he  afterwards   did  to   Choate.     We 
copy  the  following  letter  verbatim  : — 

Boston,  Dec.  8,  1817. 
Charles  Marshy  Esq. 

Dear  Sir, — You  are  aware  that  in  the  college  cause,  the  only 
question  that  can  be  argued  at  Washington,  is  whether  the  recent 
acts  of  the  Legislature  of  N.  Hampshire  do  not  violate  the  Con- 
stitution of  the  U.  S.  This  point,  tho.  we  trust  a  strong  one,  is 
not  perhaps  stronger  than  that  derived  from  the  character  of  these 
acts,  compared  with  the  Constitution  of  N.  Hampshire.  It  has 
occurred  to  me  whether  it  would  not  be  well  to  bring  an  action, 
which  should  present  both  and  all  our  points  to  the  Supreme 
Court.  This  could  be  done  by  bringing  the  action  originally  in 
the  Circuit  Court.  I  am  a  good  deal  inclined  to  favor  the  propo- 
sition of  bringing  such  a  suit.  Altho.  I  now  mention  it  only  for 
consideration.  Suppose  the  trustees  should  sue  for  the  Wheelock 
lands  in  Vermont?  Or  suppose  they  should  lease  portions  of  the 
N.  Hampshire  lands  to  a  citizen  in  Vermont?  In  either  of  these 
cases  an  action  might  be  brought  in  the  courts  of  U.  S.  in  which 
all  the  questions  could  be  considered.  I  have  suggested  this  idea 
to  Mr.  Mason  &  Judge  Smith  (&  nobody  else).  If  they  should 
think  the  hint  worth  considering  I  shall  probably  hear  from  them, 
and  in  that  case  I  write  you  again.  Such  a  suit  would  not  of 
course  at  all  interfere  with  our  present  proceedings. 
I  am  dear  sir,  with  great  respect, 

Yours, 

D.  Webster. 

This  letter  was  sent,  not  to  Marsh,  but  to  Francis  Brown, 
president  of  the  College,  with  a  note  thereon,  saying,  "I 
have  written  the  above  for  the  consideration  of  yourself  and 
Mr.  Marsh." 

Webster,  in  his  letter  of  December  8,  1817,  to  Judge 
Smith,  says  :  "  It  is  our  misfortune  that  our  cause  goes  to 
Washington  on  a  single  point.  I  wish  we  had  it  in  such 
shape  as  to  raise  all  the  other  ol))ectioiis,  as  well  as  the 
repugnancy  of  these  acts  to  the  Constitution  of  the  United 
States.  I  have  been  thinking  whether  it  would  not  be  advis- 
able to  bring  a  suit,  if  we  can  get  such  parties  as  will  give 


I)  DARTMOUTH  COLLEGE  CAUSES. 

jurisdiction,  in  the  Circuit  Court  of  New  Hampshire.  I  have 
thought  of  this  the  more  from  hearing  of  sundry  sayings  of 
a  great  personage.  Suppose  the  corporation  of  Dartmouth 
College  should  lease  to  some  man  of  Vermont  {e.g.,  C. 
Marsh)  one  of  their  New  Hampshire  farms,  and  that  the 
lessee  should  bring  ejectment  for  it.  Or  suppose  the  trus- 
tees of  Dartmouth  College  should  bring  ejectment  in  the 
Circuit  Court  for  some  of  the  Wheelock  lands.  In  either  of 
these  modes  the  whole  question  might  get  before  the  court 
at  Washington."  (1  Webster's  Priv.  Cor.  267,  268.)  In 
his  letter  of  the  same  date  to  Jeremiah  Mason,  Webster 
says  :  "I  am  sorry  our  college  cause  goes  to  Washington 
on  one  point  only.  What  do  you  think  of  an  action  in  some 
court  of  the  U.  States  that  shall  raise  all  the  objections 
to  the  act  in  question  ?  Such  a  suit  could  easily  be  brought ; 
that  is,  jurisdiction  could  easily  be  given  to  the  court  of  the 
U.  States  by  bringing  in  a  Vermont  party."  In  his  let- 
ter from  Washington,  of  March  11,  1818,  to  Mr.  Brown, 
Webster  says:  "Yours  of  the  28th  Feb.  I  received  this 
morning.  I  am  glad  a  suit  is  to  be  brought.  I  am  very 
much  inclined  to  think  the  court  loill  not  give  a  judgment 
this  term.  It  is  therefore  most  essential  to  have  an  action 
in  which  all  the  questions  arise.  Pray  therefore  take  care 
that  a  2)roper  action  be  proper??/  commenced,  and  in  the  ear- 
liest season,  in  the  Circuit  Court  of  N.  H."  (Mason's 
Papers.)  In  his  letter  to  Mr.  Mason,  of  March  22, 
1818,  Webster  says:  "I  believe  it  is  fully  exi^ected  that 
a  case  raising  the  question  in  the  amplest  form  will  be 
presented  at  the  Circuit  Court.  I  have  given  some  reason 
to  expect  this,  and,  unless  for  good  causes,  should  be  mor- 
tified if  it  were  not  so."  (1  Webster's  Priv.  Cor.  278.)  In 
his  letter  to  Mr.  Brown,  of  March  30,  1818,  he  says  :  "  1  am 
glad  an  action  is  l)rought,  and  hope  it  will  come  on  regularly 
at  the  May  term."  (1  Webster's  Priv.  Cor.  279.)  In  his 
letter  to  Mason,  of  April  28,  1818,  he  says  :  "  I  saw  Judge 
Story  as  I  came  along.      He  is  evidently  expecting  a  case 


WEBSTER'S    VIEWS.  7 

which  shall  present  all  the  questions.  It  is  not  of  great  con- 
sequence whether  the  actions  or  action  go  up  at  this  term, 
except  that  it  would  give  it  an  earlier  standing  on  the  docket 
next  winter.  The  question  which  we  must  raise  in  one  of 
these  actions,  is  whether  by  the  general  principles  of  our  gov- 
ernments the  State  Leo-islatures  be  not  restrained  from 
divesting  vested  rights.  This,  of  course,  independent  of 
the  constitutional  provision  respecting  contracts.  On  this 
question  I  have  great  confidence  in  a  decision  on  the  right 
side.  This  is  the  proposition  with  which  you  began  your 
argument  at  Exeter,  and  which  I  endeavored  to  state  from 
your  minutes,  at  Washington.  The  particular  provisions  in 
the  New  Hampshire  Constitution  no  doubt  strengthen  this 
general  proposition  in  our  case  ;  but,  on  general  principles, 
I  am  very  confident  the  court  at  Washington  would  be  with 
us.  If  so,  then  nothing  will  remain  but  this  :  '  Are  the  pow- 
ers, privileges,  or  authorities  of  the  trustees  under  this  char- 
ter, rights  within  the  meaning  of  the  proposition?  Are 
they  franchises,  liberties,  or  privileges  such  as  the  law  pro- 
tects, or  are  they  merely  disinterested  duties  or  ofiicial  ser- 
vices? 'j  I  cannot  state  this  question  very  accurately,  but 
this  is  the  general  idea.  If  we  get  up  one  of  these  cases  in 
due  form,  we  shall  defeat  our  adversaries."  (1  Webster's 
Priv.  Cor.  282,  283.) 

It  is  to  be  observed  that  the  last  letter  was  written 
nearly  two  months  after  Mr.  Webster  had  made  his.  cele- 
brated efibrt  at  Washington  in  Judge  Woodward's  case. 
It  shows  most  distinctly  the  ground  upon  which  he  relied,  — 
and  that  not  the  obligation  clause. 

The  policy  of  legislative  interference  did  not  originate 
with  the  acts  in  question,  nor  has  it  been  confined  to  them. 
Contrary  to  the  almost  universal  understanding,  based 
mainly  upon  the  argument  put  by  counsel  to  intensify  a 
point,  the  necessity  and  propriety  of  amending  this  college 
charter  have  been  conceded  by  the  leading  trustees  from  a 
very  early  period. 


O  DARTMOUTH  COLLEGE  CAUSES. 

John  Wheelock  came  from  Yale,  was  a  student  there,  and 
was  familiar  vnih  the  troubles  of  President  Clap  which 
grew  out  of  the  attempt  to  secure  the  jDassage  by  the  Legis- 
lature of  Connecticut,  in  1763,  of  an  act  providing  for  the 
government  of  Yale,  and  for  the  appointment  of  a  "  Com- 
mission of  Visitation,"  to  rectify  abuses  in  the  College,  or 
report  thereon  to  the  General  Assembly.  In  1791,  before 
the  troubles  which  resulted  in  the  exclusion  of  Wheelock 
from  the  board  had  arisen,  its  controlling  minds,  with 
Wheelock  and  Olcott  at  their  head,  of  their  own  accord, 
adopted  a  plan  by  which  the  Senate  and  the  House  were  to 
have  "some"  share  in  the  government  of  Dartmouth 
College. 

On  February  5,  1789,  the  State  granted  to  the  College  a 
township  eight  miles  square,  with  the  following   proviso : 

"  And  be  it  further  enacted,  that  the  President  and  Council  of 
the  State  for  the  time  being  shall  be,  and  they  are  hereby  incor- 
porated with  the  Trustees  of  said  College,  so  far  as  that  they  shall 
have  a  right  to  act  with  them,  as  one  board,  in  regard  to  the 
expenditures  and  applications  of  this  grant  &  all  others  which 
have  been,  or  may  hereafter  be  made  by  New  Hampshire." 

This  grant  was  a  substitute  for  tlie  Landalf  grant,  wliich 
had  failed,  and  was  duly  accepted  by  the  corporation. 

The  trustees,  on  June  5,  1805,  addressed  a  memorial  to 
the  Legislature,  praying  for  "  aid  ;  "  setting  forth  that  the 
College  was  a  matter  of  "  common  concern  to  the  citizens  " 
of  the  State  ;  and  that  ' '  Your  memorialists  would  with  def- 
erence suggest  whether,  as  the  Trustees,  actuated  by  no 
personal  interest,  consider  themselves  bound  to  attend  to 
the  concerns  of  the  Seminary  only  as  it  is  an  object  of 
public  importance,"  etc.  Whereupon  the  Legislature,  on 
June  15,  1805,  granted  them  $900. 

On  June  18,  1807,  tlie  Legislature  made  a  grant  of  a 
township  six  miles  square,  with  the  proviso  that  the  mem- 
bers of  the  Council,  president  of  the  Senate,  and  the  chief 


THE    POLICY    OF    INTERFERENCE.  9 

justice  of  the  highest  court  should  be,  "ex  officio,  members 
of  the  Board  of  Trustees  in  respect  to  this  and  any  future 
grant  to  said  College." 

Threats  that  the  legislative  authority  would  be  invoked 
were  apparently  bandied  about  and  openly  discussed  in  the 
board,  from  1805,  till  it  came  in  181G.  The  charter  created 
the  first  Board  of  Trustees,  made  them  the  corporation,  and 
gave  them  and  their  successors  the  power  of  filling  all  vacan- 
cies. It  fixed  their  number,  "forever,"  at  "twelve  and 
no  more,"  and  made  the  board  a  species  of  "  Council  of 
Ten." 

On  June  19,  1816,  while  the  act  subsequently  passed 
was  pending  before  the  Legislature,  Thompson,  Paine,  and 
McFarland,  three  of  the  leading  trustees,  addressed  to  that 
body  a  remonstrance  against  its  passage,  covering  nearh' 
eight  pages  in  print.  As  might  have  been  expected  from 
the  ability  of  the  draughtsman,  the  objections  to  the  bill 
were  stated  with  great  force  and  clearness.  Among  other 
things,  they  said  :  — 

"Whilst  the  undersigned  deem  it  their  indispensable  duty  to 
remonstrate  in  the  most  respectful  terms  against  the  passage  of 
the  bill  referred  to,  they  have  no  objection,  and  they  have  no  rea- 
son to  believe  their  fellow-trustees  have  any  objection,  to  the 
passage  of  a  law  connecting  the  government  of  the  State  with  that 
of  the  College,  and  creating  every  salutary  check  and  restraint 
upon  the  official  conduct  of  the  trustees  and  their  successors  that 
can  be  reasonably  required  ;  and,  with  respectful  deference,  thej' 
would  propose  the  following  outlines  of  a  plan  for  that  purpose : 

"The  councillors  and  senators  of  New  Hampshire,  together 
with  the  speaker  of  the  House  of  Representatives  for  the  time 
being,  shall  constitute  a  Board  of  Overseers  of  Dartmouth  College, 
any  ten  of  whom  shall  be  a  quorum  for  transacting  business.  The 
overseers  shall  meet  annuallj^  at  the  College,  on  the  day  preceding 
commencement.  They  shall  have  an  independent  right  to  organize 
their  own  bod}'^,  and  to  form  their  own  rules ;  but  as  soon  as  the}' 
shall  have  organized  themselves,  they  shall  give  information 
thereof  to   the   trustees.      Whenever   any  vote  shall   have  been 


10  DARTMOUTH  COLLEGE  CAUSES. 

passed  by  the  trustees,  it  shall  be  communicated  to  the  overseers, 
and  shall  not  have  effect  until  it  shall  have  the  concurrence  of  the 
overseers ;  provided,  nevertheless,  that  if  at  any  meeting  a  quo- 
rum of  the  overseers  shall  not  be  formed,  the  trustees  shall  have 
full  power  to  confer  degrees  in  the  same  manner  as  though  there 
were  no  overseers,  and  also  to  appoint  trustees  or  other  officers 
(not  a  president  or  professor),  and  to  enact  such  laws  as  the 
interests  of  the  institution  shall  indispensably  require  ;  but  no  law 
passed  by  the  trustees  shall  in  such  case  have  force  longer  than 
until  the  next  annual  meeting  of  the  boards,  unless  it  shall  then  be 
approved  by  the  overseers.  Neither  of  the  boards  shall  adjourn, 
except  from  day  to  day,  without  the  consent  of  the  other.  It  shall 
be  the  duty  of  the  president  of  the  College,  whenever  in  his  opinion 
the  interests  of  the  institution  shall  require  it,  or  whenever  re- 
quested thereto  by  three  trustees  or  three  overseers,  to  call  special 
meetings  of  both  boards,  causing  notice  to  be  given  in  writing,  to 
each  trustee  and  overseer,  of  the  time  and  place ;  but  no  meeting 
of  one  board  shall  ever  be  called  except  at  the  same  time  and 
place  with  the  other.  It  shall  be  the  duty  of  the  president  of  the 
College,  annually,  in  the  month  of  May,  to  transmit  to  his  excel- 
lency the  governor  a  full  and  particular  account  of  the  state  of  the 
funds,  the  number  of  students  and  their  progress,  and  generally 
the  state  and  condition  of  the  College." 

The  truth  is,  the  trustees  were  willing  that  almost  any 
amendment  should  be  made  to  the  charter,  if  so  framed  that 
they  could  exclude  Wheelock  and  his  friends  from  any  share 
in  the  government  of  the  College,  and  could  retain  posses- 
sion for  themselves  and  their  friends. 

Soon  after  the  decision,  in  1819,  some  of  the  trustees,  who 
so  stoutly  resisted  all  similar  attempts  on  the  part  of  the 
State,  proposed  to  make  material  changes  in  this  "  invio- 
lable "  contract,  by  creating  a  Board  of  Overseers,  etc.  ;  and 
these  attempts  have  continued  till  the  present  day.  It  is 
unnecessary  to  inquire  now  what  would  have  become  of  the 
corporation  in  the  possible,  but  improbable,  event  of  the 
death  of  a  quorum  of  the  trustees,  or  their  neglect  or  re- 
fusal to  choose  successors.     Under  the  charter,  the  alumni 


CHARTER CHANGES    PROPOSED.  11 

have  no  rights,  but  for  years  they  have  been  knocking  at 
the  door  of  the  corporation,  and  asking  recognition  and 
representation  in  the  Board  of  Trustees.  As  they  had  given, 
or  were  expected  to  contribute,  liberally  to  the  aid  of  their 
alma  mater,  the  demand  was  in  itself  reasonable.  The 
trustees  were  inclined  to  grant  it,  if  it  could  be  done. 
There  was  the  "rub."  The  "successors"  of  those  who 
denied  all  legislative  power  in  the  premises  in  1816-17, 
gravely  considered  the  proposition  to  ask  the  Legislature 
to  amend  the  charter  so  that  the  alumni  could  elect  a  por- 
tion of  the  trustees  ;  but  they  had  not  forgotten  that  a  step 
somewhat  akin  to  this,  proposed  by  Olcott  and  others,  who 
had  denied  the  power  in  1816-19,  was  under  considera- 
tion in  1821,  nor  that  Daniel  Webstei'  (see  his  letter  to  his 
brother  Ezekiel,  of  June  17,  1821),  probably  having  in 
mind  the  argument  of  Parsons  on  that  point,  to  which  we 
shall  hereafter  advert,  advised  against  the  scheme  as  one 
"  not  without  danger,"  and  said  :  "It  would  be  injurious, 
I  think,  to  propose  to  take  this  important  alteration  in  the 
charter,  before  the  ground  was  well  explored." 

In  his  letter  to  Webster,  of  June  13,  1821,  Mills  Olcott 
says:  "Some  of  the  friends  of  old  D.  College  who  are 
here  have  thouo^ht  that  her  real  interest  mis-ht  be  subserved 
by  some  legislative  arrangements  at  this  time,  whereby  not 
only  State  patronage,  but  State  funds,  should  be  obtained. 
They  have  thought  of  a  board  of  overseers,  say  of  20,  — 
to  include  the  president  of  the  Senate,  the  speaker  of  the 
House,  the  others  to  be  appointed  by  the  Governer  &  Coun- 
cil,—  to  have  a  veto  upon  the  appointment,  &c.,  of  the 
trustees,  &  afterwards  fill  up  their  own  vacancies  them- 
selves, &  to  be  somewhat  on  the  footing  of  Caml^ridge. 
A  tax  is  expected  to  be  raised  for  the  State  treasury  this 
session  from  banks,  &  from  this  fund  have  say  $5,000 
annually  for  ten  years  appropriated  for  D.  C.  There  is  no 
real  college  man  in  the  Legis.,  except  Bro.  Ez.  &  my  hum- 


12  DAETMOUTH  COLLEGE  CAUSES. 

ble  self,  &  we  cannot  have  the  benefit  of  consulting  with 
trustees. 

' '  I  therefore  take  the  liberty  to  ask  your  advice  as  to 
the  policy  of  attempting  this  or  any  thing  of  the  kind,  more 
especially  of  the  best  way  to  bring  Mason's  giant  abilities 
&  influence  into  hearty  &  strenuous  exercise.  He  can  do 
here  ( as  he  can  almost  everywhere )  what  he  chooses  to  set 
himself  about  in  earnest.  He  has  been  consulted,  &  I  be- 
lieve is  sincerely  well  disposed  ;  but  unless  he  is  the  prime 
mover,  so  that  it  acquires  its  momentum  from  him  in  the 
first  instance,  I  should  hardly  expect  success  in  efiecting  any 
thing.  Some  influential  republicans  profess  to  be  pleas' d 
with  a  reconciliation,  though  it  has  only  been  whispered  to 
a  few. 

"  Will  you  take  the  trouble  to  give  me  your  views  of 
what  is  advisable  on  this  subject  as  early  as  may  be.  You 
may  rely  on  its  being  most  strictly  confidential,  if  you 
wish  it." 

This  letter  was  written  from  Concord,  while  the  Legisla- 
ture was  in  session,  Olcott  being  a  member  of  the  House 
from  Hanover,  and  Ezekiel  Webster,  who  was  as  gifted  in 
his  way  as  his  famous  brother,  representing  Boscawen,  as 
he  did  for  many  years 

Webster,  in  his  reply,  writing  from  Boston,  under  date 
of  June  17,  1821,  says :  "  I  wish  I  had  more  hope  of  good 
than  I  have  to  the'College  from  the  Legislature.  Of  course 
you  know  best  the  feeling  on  such  subjects  at  present  exist- 
ing, but  for  myself  I  do  not  believe  the  College  could  get  a 
dollar  from  the  Genl.  Court.  They  would  be  very  likely  to 
accept  the  proposition  to  appoint  overseers,  but  as  to  the 
money  part  of  the  bargain  I  do  not  think  they  would  give 
a  cent.  Besides,  I  do  not  think  the  present  a  favorable 
moment  to  create  a  board  of  overseers  by  executive  appoint- 
ment, with  power  afterwards  of  filling  their  own  vacancies. 
It  is  easy  to  see  what  sort  of  men  would  be  first  appointed. 


OLCOTT MASOX THE    WEBSTEllS.  13 

&  what  sort  of  men  they  would  perpetuate.  All  would  be 
political  &  nothing  literary.  My  own  impression  is,  that  if 
the  College  must  die,  it  is  better  that  it  should  die  a  natural 
death.  A  board  of  overseers,  such  as  would  probably  be 
appointed,  would  negative  every  important  nomiiiation  of  the 
trustees.  Of  this  I  have  no  sort  of  doubt.  There  are  rea- 
sons not  applicable  to  D.  College,  &,  to  such  a  board  as  you 
would  create,  which  alone  prevented  elsewhere  the  utmost 
embarrassment. 

"  I  have  given  my  opinion,  as  3^ou  request,  &  l^eg  you  to 
treat  it  as  entirely  confidential.  I  have  no  room  to  state 
reasons  at  large.  At  any  rate,  I  should  not  think  it  expe- 
dient to  move  in  the  matter  without  much  circumspection, 
&  a  previously  arranged  plan,  which  should  have  reed, 
the  approbation  of  the  trustees.  Is  there  any  reliance  to  be 
placed  in  the  quarter  from  which  the  first  appointments 
would  proceed  ?  My  own  judgment  &  opinion  do  not  answer 
that  question  favorably. 

"I  had  hoped  to  be  in  Concord  before  you  leave  it,  & 
still  intend  so  to  be,  but  our  Sup.  Court  is  still  in  session 
&  may  last  too  long  for  my  purpose.  Mr.  Blake,  with  Mrs. 
B.  &  George,  are  gone  to  Newport  on  a  little  excursion, 
partly  to  attend  the  Circuit  Court  and  partly  for  pleasure." 

In  this  letter,  probably  Mr.  Webster  did  not  intend  to 
reflect  upon  his  personal  friend  and  client,  the  governor,  but 
upon  other  influences  that  might  control  the  appointing 
pov/er  through  the  Council. 

This  project  was  recently  abandoned  as  "  too  hazardous." 
The  proposition  lately  under  consideration  by  the  trustees 
was,  in  substance,  to  adopt  regulations  whereby  the  alumni 
should  "nominate"  a  certain  number  of  the  trustees,  with 
the  understandino*  that  the  trustees  should  "confirm"  that 
"nomination,"  by  going  through  the  forms  of  an  election. 
It  is  understood  that  a  majority  of  the  trustees  were  in  favor 
of  the  plan  stated. 


14  DARTMOUTH  COLLEGE  CAUSES. 

The  following,  issued  April  21,  1878,  shows  what  steps 
were  ultimately  taken  :  — 

Nomination  of  Trustees  by  the  Alumni  of  Dartmouth  College.  — 
On  the  12th  of  August,  1875,  the  trustees  of  Dartmouth  College 
voted  to  submit  to  the  Association  of  Alumni  the  following  plan : 

I.  On  the  occurrence  of  the  next  three  vacancies  in  the  Board 
of  Trustees,  including  one  outside  of  New  Hampshire,  the 
trustees  will  request  the  alumni  to  make  nominations  in  the 
following  manner :  — 

[1.]  Information  of  each  vacancy  shall  be  given  by  the  sec- 
retary, as  soon  as  it  occurs,  to  the  secretary  of  the  Alumni 
Association,  and  he  shall  give  timely  notice  to  the  alumni,  in 
such  manner  as  the  association  shall  determine,  requesting  the 
graduates  in  course,  of  four  years'  standing,  both  of  the  academic 
and  scientific  departments,  to  send  to  him,  before  the  next  meet- 
ing of  the  board,  a  nomination  under  their  own  signature,  of  four 
eligible  candidates  for  said  vacant  place.  And  the  secretary  shall 
state  in  said  notice  the  limitations,  if  any,  imposed  by  the  charter, 
as  to  the  class  or  locality  from  which  the  vacant  place  is  to  be 
filled. 

[2.]  The  four  names  receiving  the  largest  number  of  votes 
shall  be  reported  by  the  secretary  of  the  alumni  to  the  board. 
While  there  are  certain  legal  objections  to  any  positive  and  formal 
agreement  on  the  subject,  it  is  understood  that  ordinarily,  and  in 
all  probability,  invai'iably  some  one  of  the  persons  nominated  will 
be  elected  to  the  vacant  place. 

[3.]  When  any  of  the  places  so  filled  shall  become  vacant,  by 
death  or  otherwise,  it  shall  be  refilled  in  the  manner  aforenamed. 

II.  [1.]  If  either  the  Association  of  the  Alumni  or  the  Board 
of  Trustees  shall  hereafter  desire  any  modification  of  the  arrange- 
ment, it  may  be  signified  to  the  other  party,  and  become  the 
subject  of  conference  between  them. 

[2.]  This  arrangement  may  be  terminated,  by  vote  of  either 
the  association  or  the  board,  if  at  any  future  time  it  shall  be 
deemed  desirable  by  either. 

The  above  plan  was  presented  to  the  Alumni  Association  at 
their  meeting  in  June,  1876,  and  was  unanimously  adopted,  and 
the  curators  of  the  association  were  appointed  a  committee  with 


LEGISLATIVE    AUTHORITY.  15 

powers  to  attend  to  any  details,  on  the  part  of  the  association, 
necessary  to  carry  out  the  plan ;  and  the  secretary  of  the  associa- 
tion duly  certified  said  action  to  the  Board  of  Trustees. 

S.  C.  Bartlett, 

President. 

This  arrangement  has  been  carried  into  execution.  It 
is  difficult  to  understand  how  trustees  charged,  as  claimed, 
in  the  most  solemn  manner  with  the  execution  of  oreat 
trusts,  by  the  very  instrument  to  which  they  owed  their 
own  existence  and  their  powers,  could,  of  their  own  motion, 
lawfully  divert  or  annihilate  the  one,  and  change  the  legal 
effect  of  the  other.  If  one  step  like  this  can  be  taken, 
another  may  ;  and  this  "  inviolable  "  charter  would  be  vir- 
tually abolished  by  the  trustees. 

The  Legislature  seemingly  had  some  "  color  "  of  author- 
ity for  these  enactments.  Before  and  since  the  Revolution, 
the  legislative  bodies  in  New  Hampshire  were  its  "  General 
Court."  That  court  was  accustomed  to  set  aside  fraudu- 
lent conveyances,  order  specific  performance,  revive  rules 
of  reference,  blot  out  levies,  cancel  executions,  open,  annul, 
and  relieve  against  judgments,  and  grant  new  trials,  and  in 
general  to  give  relief  where  justice  had  not  been  done  by  the 
ordinary  legal  tribunals.  This  was  sometimes,  though 
rarely,  done  upon  the  ground  that  there  was  "no  remedy 
at  common  law."  These  powers  were  exercised,  not  as 
a  court  of  chancery,  eo  nomine,  but  subject  to  a  few 
theoretical  restraints,  upon  the  ground  of  legislative  or  par- 
liamentary omnipotence.  From  1692  to  1821,  New  Hamp- 
shu-e  had  no  court  of  chancery.  In  1821,  two  years  after 
the  final  decision  in  this  cause.  Mason,  one  of  the  leading 
counsel  in  it,  as  chairman  of  the  committee  on  the  judiciary, 
reported  a  bill,  which  became  a  law,  conferring  chancer}'^ 
powers  in  relation  to  trusts  upon  the  highest  court  of  the 
State. 

The  act  of  June  19,  1817,  granting  a  new  trial  to  Dolly 
Merrill,  as  administratrix  of  the  estate  of  Benjamin  Mer- 


16  DAETMOUTH  COLLEGE  CAUSES. 

rill,  for  which  a  petition  had  been  pending  before  the  Legis- 
lature for  years,  was  carried  by  one  of  Mr.  Webster's  most 
memorable  efforts.  Mason  defended  the  constitutionality 
of  this  act,  which  was  before  the  court  at  the  same  time  as 
Trustees  v.  Wooodward.  The  positions  necessarily  taken 
by  Webster  and  Mason  in  these  cases  were,  in  some 
respects,  antagonistic.  This  act  was  set  aside  in  Merrill  v. 
Sherburne  (1  N.  H.  199-217),  upon  the  ground  that  "  an 
act  of  the  Legislature  awarding  a  new  trial  in  an  action 
which  has  been  decided  in  a  court  of  law  is  an  exercise  of 
judicial  power.  It  is  also  in  its  operation  retrospective  ; 
and,  for  these  two  reasons,  is  unconstitutional." 

If,  as  Webster  and  Mason  contended,  the  acts  amending 
the  charter  of  the  College  were  the  exercise  of  a  judicial  and 
not  of  a  legislative  power,  it  was  doubly  clear  that  the  act 
granting  a  new  trial,  which  the  one  had  carried  through  the 
Le2:islature  and  the  other  defended  before  the  court,  was 
unconstitutional.  To  this  may  be  added  the  doubts,  to  call 
them  by  their  mildest  name,  of  Judge  Smith,  and  the 
adverse  opinion  of  Mason,  to  say  nothing  of  that  afterwards 
given  by  Chancellor  Kent. 

The  practical  results  of  the  final  judgment  in  Trustees  v. 
Woodward  exhibit  in  a  strikins:  liii'ht  the  short-sightedness 
of  men.  That  decision  was  invoked  by  one  of  the  warring 
factions  in  the  Board  of  Trustees  to  dethrone  another.  It 
made,  what  the  parties  to  the  charter  and  the  "laws  of 
Eno^land  "  never  did,  a  contract  which  no  human  external 
power  could  ever  modify  or  change. 

Judge  Marshall  decided,  in  effect,  that  the  Kevolution 
blotted  out  the  legal  existence  of  the  ' '  party  of  the  first 
part," — the  fountain  from  which  all  its  chartered  blessings 
flowed,  —  and  put  the  State  of  New  Hampshire  in  his  place  ; 
that  prior  to  the  adoption  of  the  Constitution  of  the  United 
States,  the  charter  might  lawfully  have  been  so  modified  or 
changed;  that  the  most  vital  attribute  of  the  "contract," 
an  inviolability  as  fixed  as  the  laws  of  the  jNIedes  and  Per- 


THE    DECISION.  17 

sians,  inhered  not  in  the  hmg-uage  used  by  the  parties  and 
the  recognized  law  at  the  time  of  its  creation,  but  had  been 
injected  into  it,  twenty  years  after  it  was  made,  by  that  Con- 
stitution. 

But  the  important  question  for  the  American  people  is 
not  whether  the  judgment  against  Judge  Woodward  could 
liave  been  sustained  upon  other  grounds,  which  the  judges 
of  the  Supreme  Court  could  not  consider  without  a  violation 
of  the  Constitution,  the  laws  of  the  United  States,  and  their 
oaths,  but  whether  the  principle  underlying  that  decision 
is  definite,  tangible,  and  sound  ;  whether  it  covers  the  innu- 
merable causes  which  have  found  shelter  under  the  wings 
of  the  opinions  popularly  supposed  to  have  been  delivered 
when  that  decision  was  given  ;  and,  in  fact,  whether  the 
countless  and  constantly  increasing  array  of  corporations 
in  this  great  country  have  more  of  sovereignty  than  the 
power  which  gave  them  being.  No  questions  which  can 
1)e  raised  involve  such  far-reaching  consequences  as  these. 
And  their  importance  increases  year  by  year,  in  a  ratio 
which  has  no  parallel  in  the  past,  and  can  have  none  when 
we  have  attained  a  population  of  from  two  to  five  hundred 
millions. 

The  tide  of  events  will  force  their  discussion  and  compel 
their  determination.  They  must  be  brought  in  review.  The 
truth  will  be  sought  till  found.  It  is  best  that  this  should 
be  done  by  judicial  decision.  The  court,  as  now  consti- 
tuted, may  not  be  able  to  settle  them  :  if  not,  their  suc- 
cessors must ;  or,  if  the  republic  endures,  the  people,  in 
the  proper  way,  will. 

The  present  judges  are  of  varying,  but,  in  general,  of  emi- 
nently respectable  attainments.  Some  of  them  are  very 
eminent  in  special  departments  ;  but  no  fact  is  more  pain- 
fully apparent  to  those  Avho  have  f-tudied  closely  the  course 
of  that  great  tribunal,  than  that  its  decisions  lack  the  unity 
which  marked  them  during  the  dictatorship  of  Marshall  and 
under  the  great  triumvirate  of  the  "  old  bench," — Tanev, 


16  DAKT.AIOUTII    COLLEOE    CAUSES. 

Nelson,  and  Campbell.  For  years  it  has  had  no  command- 
ing spirit  on  its  quarter-deck.  It  has  lost  its  reckoning  ;  it 
has  been  beating  about  in  a  storm  ;  it  has  relapsed  into  the 
chaos  of  doubt  and  uncertainty  which  marked  the  earlier 
years  of  its  existence,  when  the  politicians — or  statesmen  — 
of  that  day  bivouacked  in  the  chief  justiceship  on  their 
march  from  one  political  position  to  another. 

The  territorial  extent  of  the  Union  when  that  court  was 
created,  as  compared  with  the  present,  was  but  a  "patch 
upon  the  earth's  surftice."  The  population  has  gone  up 
from  four  to  more  than  forty  millions,  and  the  judicial  busi- 
ness has  increased  out  of  proportion  to  both.  The  country 
has  outgrown  the  court.  Laying  out  of  the  case  the  mass 
of  causes  originating  in  the  District  or  Circuit  Courts,  which 
may  go  to  the  Supreme  Court  for  final  determination,  it  is, 
as  to  a  most  important  class  of  questions,  the  court  of  last 
resort  for  nearly  fifty  States  and  Territories.  That  the  dis- 
parity must  increase  year  by  year  is  inevitable.  It  was  the 
remark  of  Judge  Curtis,  one  of  the  most  eminent  judges  of 
the  Supreme  Court,  that  no  lawyer  could  be  of  much  assist- 
ance to  a  court  unless  he  had  grown  up  in  the  atmosphere 
of  the  statutes  and  the  practice  of  that  jurisdiction.  It  is 
simply  impossible  for  the  judges  to  have  this  knoAvledge  of 
the  local  law,  which  they  are  so  often  called  upon  to  inter- 
pret. The  result  of  all  this  has  been  hasty,  conflicting,  and 
ill-considered  decisions  and  opinions,  sometimes  slipshod, 
and  wandering  in  darkness,  while  filled  with  learning. 

Recruited  at  an  early  period  in  our  history  by  the  political 
department  of  the  government,  and  to  a  great  extent  from 
political  life,  and  hence  to  a  certain  degree  fashioned  by  it, 
the  Supreme  Court  has  betrayed  in  its  acts  the  defects  of 
its  organization.  It  has  suffered  from  internal  dissensions 
and  outside  pressure.  It  has  sometimes  done  the  things 
which  it  ought  not  to  have  done,  and  much  oftener  omitted 
to  do  those  things  which  it  ouo;ht  to  have  done. 

The  power  of  taxation  is  generally  conceded  to  be  one  of 


THE    SUPREME    COLUT.  19 

the  primary  attributes  of  sovereignty.  If  corrupt  legisla- 
tive bodies  can  irrevocably  auction  off  this  power  to  the 
highest  bidder  by  instalments,  why  not  the  whole,  and  at 
once?  If  one  of  these  attributes  can  be  constitutionally 
converted  into  merchandise  under  the  legislative  hammer, 
why  not  others?  Did  the  Constitution,  under  the  clause, 
"' no  State  shall  *  *  *  pass  any  *  *  *  law  impair- 
ing the  obligation  of  contracts,"  establish  the  doctrine  of 
State  suicide,  or  grant  the  power  to  destroy  the  "  founda- 
tion idea  of  the  government,"  or  forever  prohibit  the  States 
from  so  amending  their  respective  Constitutions  as  to  confer 
judicial  power  upon  their  legislative  bodies? 


CHAPTEE    11. 

ORIGIN  AND  HISTOEY  OF  MOOR'S  INDIAN  CHARITY-SCHOOL 
IN  CONNECTICUT  — ATTEMPTS  TO  PROCURE  A  CHARTER 
FOR  IT  — FUNDS  COLLECTED  FOR  THE  SAIVIE  —  REMOVAL  TO 
NEW  HAMPSHIRE  — THE  SCHOOL  AND  COLLEGE  DISTINCT  — 
COLLEGE  CHARTER. 

The  Dartmouth  College  causes  have  a  history.     With  Coke, 
as  briefly  as  we  may,  let  us    begin    at   their   "fountains 
to  trace  the  streams."      Sorely  against  the  will  of  the  set- 
tlers, who  numbered  less  than  four  thousand,  the  king,  in 
1680,  created  the  province  of  New  Hampshire,  for  the  pur- 
pose of  enabling  the  roj^al  favorites  to    plunder  them  of 
the  fruits  of  their  lands,  which  they  had  reclaimed  in  spite 
of  the  red  man's  scalping-knife  and  fagot.     For  years  they 
suffered  severely  from  these  proconsular  robbers  and  their 
agents  ;  but,  at  a  later  period,  under  the  guidance  of  able 
leaders,  the  province  had  far  less  occasion  to  complain  of 
the  royal  policy  than  man}'^  of  her  sister  colonies,  and  often 
received  marked  favors  at  the  hands  of  the  crown.     Massa- 
chusetts had  long  claimed  dominion  over  the  heart  of  the 
province,  by  an  alleged  boundary-line  running  from  "Endi- 
cot's  tree,"  "three  miles  due  north  of  the  crotch"  of  the 
Merrimack  River,  through  a  point  about  four  miles  north 
of  Webster's  birthplace,  and  due  west  to  the  South  Sea. 
But  on  April  9,  1740,  the  king  decided  against  Massachu- 
setts, and  established  the  existing  boundary-line,  which  was 
supposed  to  extend  to  a  point  twenty  miles  east  of  the 
Hudson  River.     Soon  after,  Benning  Wentworth,  governor 
of  New  Hampshire,  laid  out  and  granted  away  one  hun- 
dred and  thirty-eight  towns,  containing  more  than  half  a 
milhon  acres  of  land,  west  of  the  Connecticut  River,  in  what 
is  now   the    State  of  Vermont,  ending   Avith    Bennington, 

(20) 


THE    GRANTS WHEELOCK 0CC0:M MOOR .  2  I 

named  for  himself.  Dunmore,  governor  of  New  York,  sul)- 
sequently  granted  away  five  hundred  and  eleven  thousand 
nine  hundred  acres  of  the  same  lands.  This  brought  on 
the  controversy  between  New  York,  New  Hampshire,  Ver- 
mont, and  the  settlers  in  the  valley,  about  the  "  New 
Hampshire  grants,"  which  kept  the  settlers  on  both  sides 
of  the  river  in  a  political  ferment  for  years,  and  brought 
t,he  whole  to  the  very  verge  of  civil  war. 

In  1733,  Eleazar  Wheelock  graduated  at  Yale,  and  in 
1735  was  ordained,  and  settled  as  the  minister  of  the  set- 
ond  (or  north)  society,  in  Lebanon,  Connecticut,  then  called 
"Lebanon  Crank,"  and  since  about  1800  known  as  the 
town  of  Columbia,  where  he  remained  till  late  in  1770. 
His  salary  was  nominally  £140  ;  l)ut  some  years  he  received 
only  about  one-third  of  that,  partly  paid  in  provisions. 
Finding  his  salary  inadequate,  he  taught  a  few  pupils  at  his 
house.  Wheelock  was  a  man  of  powerful  intellect,  great 
tact,  energy,  and  intense  religious  zeal.  He  stood  in  the 
van  of  the  great  relijnous  awakenino-  of  1740. 

In  December,  1743,  Wheelock  took  Samson  Occom,  a 
Mohegan  Indian,  into  his  family,  where  he  remained  for 
five  years.  Occom  proved  to  be  an  excellent  scholar,  of 
rare  ability,  and  soon  became  a  "preacher  of  distmction." 

From  this  humble  origin  sprang  the  Charity-School.  On 
July  17,  1755,  Joshua  Moor,  a  farmer  of  Mansfield,  gave 
by  deed  a  house,  shop,  and  about  two  acres  of  land  "for 
the  Foundation,  Use,  and  Support  of  a  Charity-School,  for 
the  Education  of  Indian  Youth  ;  "  and  in  consequence  this 
school  was  ever  after  called  ' '  Moor' s  Indian  Charity-School . ' ' 

William  Smith,  of  New  York,  in  his  letter  to  Wheelock, 
of  August  f),  1755,  suggested  to  him  that  there  was  "no 
incorporation."  Soon  after,  Wheelock  took  steps  to  obtain 
a  "  royal  charter"  for  this  school.  He  applied  to  Lord 
Halifax.      In  his  "Narrative,"  Wheelock  says:  — 

"  Sometime  after  those  Boys  came,  [December  18,  1754]  the 
Affair  appearing  with  an  agreeable  Aspect,  it  being  then  a  Time  of 


22  DARTMOUTH  COLLEGE  CAUSES. 

profound  Peace  in  this  Country,  I  represented  the  Affair  to  Colonel 
Elisha  Williams,  Esq.;  late  Rector  of  Yale-College,  and  to  the 
Rev'd  Messi'rs  Samuel  Moseley  of  Windham,  and  Benjamin 
Pomeroy  of  Hebron,  and  invited  them  to  join  me ;  they  readily 
accepted  the  Invitation ;  and  a  Gentleman  learned  in  the  Law  sup- 
posed there  might  be  such  an  Incorporation  among  ourselves  as 
might  fully  answer  our  Purpose.  And  Mr.  Joshua  Moor,  late  of 
Mansfield,  deceased,  appeared  to  give  a  small  Tenement  in  this 
Place,  for  the  Foundation,  Use  and  Support  of  a  Charity-School, 
for  the  Education  of  Indian  Youth,  «&c.  But  it  pleased  God  to 
tdke  the  Good  Colonel  from  an  unthankful  World  soon  after  the 
Covenant  was  made  and  executed,  and  thus  deprived  us  of  the 
Benefit  of  his  singular  Learning,  Piety  and  Zeal  in  the  Affair. 
Notwithstanding,  a  Subscription  was  soon  made  of  near  £500  law- 
ful Money,  towards  a  Fund  for  the  Support  of  it,  at  6  per  Cent. 
But  several  Gentlemen  of  the  Law,  doubting  of  the  Validity  and 
Sufficiency  of  such  an  Incorporation  ;  several  steps  were  taken  to 
obtain  the  Royal  Favour  of  a  Charter,  but  none  effectual." 

The  result  is  thus  stated  by  Wheelock  in  his  letter  to  Wil- 
liam Smith,  of  1760  :  "  We  sent  home  some  years  ago  for 
the  Royal  favor  of  a  charter.  Lord  Halifax  approved  the 
design,  but  (to  save  expense)  advised,  instead  of  a  char- 
ter, the  establishment  of  the  school  hy  a  law  of  Connecti- 
cut Colony,  and  promised  that  when  sent  there  it  should 
be  ratified  in  council,  which  he  supposed  would  be  as 
sufficient  as  any  act  there.  Hereupon  I  attended  our 
Assembly  in  May,  1758,  with  a  memorial.  The  jDrayer  of 
which  was  granted  by  the  House  of  Representatives ;  the 
governor  and  council  negatived  it  upon  the  ground  that  their 
action  would  not  be  valid  if  ratified  in  England,  heyond 
this  Colony,  and  that  a  corporation  within  a  corporation 
might  be  troublesome  as  Yale  College  had  sometimes  been. 
I  am  since  informed  that  the  Earl  of  Dartmouth  has  prom- 
ised, if  the  matter  shall  be  put  into  a  proper  channel,  to 
undertake  and  go  through  with  it  at  his  own  expense." 
(See  Smith's  History  of  Dartmouth  College,  etc.,  41.) 

In    May,   1764,  "^Mieelock  without   avail  petitioned   the 


THE    SCHOOL INCORPORATION.  23 

Counecticut  Assembly  "to  incorporate  "  six  gentlemen  of 
that  colony,  including  George  Willys,  of  Hartford,  and  him- 
self, as  legal  guardians  of  this  school.  AVhat  he  desired  was 
a  charter  that  would  enable  him  to  locate  in  any  of  the 
American  colonies. 

While  the  movements  to  secure  a  charter  were  going  on, 
subscription  papers  were  circulated  throughout  the  colonics, 
commencing  in  1755,  and  Avere  numerously  signed,  by  which 
the  subscribers  promised  to  j^ay,  etc.,  for  the  sole  "  use  and 
benefit"  of  this  "  school,"  "  as  soon  as  the  school  should  = 
become  a  body  corporate,"  etc. 

In  December,  1765,  Wheelock  sent  Occom  to  England  and 
Scotland  to  preach,  and  solicit  funds  for  the  school,  where 
he  arrived  early  in  1766.  He  aroused  great  enthusiasm 
among  the  clergy  and  nobility,  and  his  mission  was  a  suc- 
cess. In  1766,  the  king  gave  £200  and  the  Earl  of  Dart- 
mouth £50  for  this  school.  Over  £9,000  Avere  collected  in 
England,  and  placed  ni  the  hands  of  a  board  of  London 
trustees,  of  which  the  Earl  of  Dartmouth  Avas  the  head,  and 
John  Thornton,  a  rich  merchant  of  London,  treasurer  and 
one  of  the  principal  managers.  Between  £2,000  and  £3,000 
Ave  re  collected  in  Scotland,  and  called  the  Scotch  fund, 
which  Avas  deposited  Avith  the  "  Scotch  Society  for  the  Propa- 
gation of  Christian  KnoAA^ledge,"  etc.  As  manager  of  the 
school.  Dr.  Wheelock  always  accounted  for  his  disburse- 
ments to  these  trustees.  Occom  returned,  haA^ing  raised 
about  £12,000  in  all.  The  Legislatures  of  Connecticut, 
Massachusetts,    and    Ncav    Hampshire    also    granted    aid. 

Wheelock  had  thus  been  instrumental  in  securino;  lari^e  con- 
es       o 

tributious  for  this  purpose  in  England  and  Scotland,  as  well 
as  America. 

The    foUoAsdng   is    from  William   Smith    to    Wheelock' s 

agent : — 

New  York,  30  March,  1767. 

Several  questions  proposed  by  Mr.  Phelps  relating  to  Mr. 
Wheelock' s  Indian  School. 

1st.  Whicli  will   be   most  for    the    interest  of   the  school,  the 


24  DARTMOUTH  COLLEGE  CAUSES. 

lodging  of  the  money  given  to  it  in  a  bank  at  home,  or  the  trans- 
fer of  it  to  America  ? 

Answer.  Tlie  preference  must  be  given  to  that  country  where 
it  will  produce  most  and  be  most  safe.  I  am  confident  that  it  can 
be  let  out  in  the  province  of  New  York  for  the  legal  interest  of 
seven  per  cent,  and  secui'ed  by  bonds  and  mortgages  of  persons, 
and  on  lands  worth  ten  times  as  much  as  the  sums  let,  &  that  it  may 
be  let  out  in  large  sums  of  one,  two,  or  three  thousand  pounds 
together.  I  suppose  it  will  not  raise  in  England  above  four  per 
cent. 

2d  Question.  Ought  the  school  and  its  funds  to  be  in  the  hands 
of  a  private  trustee,  suppose  Mr.  Wheelock,  and  he  to  appoint  a 
successor  by  his  last  will,  or  will  it  induce  most  to  its  interest  to 
have  it  incorporated  by  charter  ? 

Answer.  Beyond  all  doubt  it  would  be  best  to  have  a  charter. 
Incorporating  a  number  of  warm  friends  in  America,  near  to  each 
other  to  direct  and  govern  the  school,  and  some  reputable  friends 
in  England  for  correspondence  and  protectors.  This  is  the  only 
way  to  render  the  project  permanent,  to  secure  wisdom  and 
council  equal  to  the  work,  to  defend  it  against  opposition,  and  to 
encourage  future  donations  ;  but  I  refer  to  what  I  wrote  upon  this 
head  to  Dr.  Finley,  who  communicated  my  remarks  to  Mr.  Whee- 
lock, and  also  to  the  suggestions  contained  in  my  letter  to  Mr. 
Wheelock  last  fall.  I  shall  only  add  that  a  charter  is  more  neces- 
sary for  such  an  institution  in  this  country  than  it  can  be  in 
England.  An  incorporated  body  will  not  only  acquire  rights 
maintainable  by  law  in  the  courts  of  justice,  but  command  the 
favor  of  the  officers  of  the  government,  who,  without  that  sanc- 
tion, may  at  such  distances  from  the  crown  oppress  the  undertaking 
a  thousand  ways  and  utterly  destroy  it.     *     *     * 

3d  Question.  By  what  method  can  a  charter  be  obtained? 

Ansiver.  A  petition  should  be  profferred  to  his  majesty,  for  a 
mandamus  to  the  governor  and  council,  and  all  subordinate  of- 
ficers, to  pass  a  charter  according  to  a  form  annexed  in  hoc  verba, 
under  the  great  seal  of  the  province  ;  and  at  the  same  time  a 
standing '  instruction  should  be  procured  to  the  governor  and 
secretary  for  Indian  Affairs,  to  aid,  countenance  and  protect  the 
corporation  in  the  execution  of  the  powers  and  privileges  granted 
to' them  by  the  charter,  as  they  will  answer  to  the  *  *  *  at 
their  peril.* 


LOCATION THE   "FOUNDATION."  25 

It  is  noticeable  that  the  course  pointed  out  was  not  taken 
in  New  Hampshire,  though  the  common  process  for  many 
years  had  been  to  induct  appointees  into  office,  and  accom- 
plish other  special  objects  by  mandamus.  The  Home  Office 
suggested"  to  Wheelock  to  go  to  the  Legislature  of  Con- 
necticut for  his  charter.  No  such  suggestion  was  made  m 
relation  to  New  Hampshire,  nor  was  any  such  attempt  made. 
"Why  should  the  Colonial  Legislature  of  Connecticut  be 
deemed  to  have  the  jjower,  and  that  of  New  Hampshire  not? 

After  he  ascertained  that  no  incorporation  could  be  had 
from  Connecticut,  plans  were  set  on  foot  to  remove  the 
school  to  lands  on  the  Mississippi,  given  to  the  officers  of 
the  old  French  War ;  to  fix  it  in  the  Middle  States  ;  to 
remove  it  to  All)any,  New  York ;  to  establish  it  in  Spring- 
field and  other  places  in  Massachusetts  ;  and  to  locate  it  at 
Landaft',  Bath,  Haverhill,  Piermont,  Lyme,  Orford,  Hano- 
ver, Lebanon,  Cornish,  Hinsdale,  Canaan,  Plymouth,  Rum- 
ney,  Campton,  and  other  towns  in  New  Hampshire.  Whee- 
lock spent  over  two  years  in  fixing  upon  a  new  location,  and 
in  preparation  for  its  removal ;  but  after  repeated  confer- 
ences with  the  governor  of  New  Hampshire  and  several  of 
its  leading  men,  the  "  Indian  Charity-School  "  was  removed 
to  Hanover. 

On  July  20,  1768,  Wheelock  commissioned  Ebenezer 
Cleveland,  and  his  son,  Ralph  Wheelock,  to  explore  the 
province  with  reference  to  the  location,  and,  in  effect,  to 
ascertain  what  grant,  if  any,  would  be  made.  In  his  report, 
made  in  December,  1768,  which  describes  the  town  of  Lan- 
daff,  sets  out  its  situation,  and  that  the  governor  was  ready 
to  make  a  grant,  he  says  :  "  I  waited  upon  His  Excellency, 
John  Wentworth,  Esq.,  Governor  of  New  Hampshire.  He 
appeared  very  friendly  to  the  design,  promised  to  grant  a 
township  six  miles  square  to  the  use  of  the  school,  pro- 
vided it  should  ])e  fixed  in  that  province,  and  that  he  would 
use  his  influence  that  His  Majesty  should  give  the  quit-rents 
to  the  school,  to  be  free  from  charge  of  fees,  except  from 


26  DARTMOUTH  COLLEGE  CAUSES. 

surveying. ' '  (  Smith' s  History  of  Dartmouth  College,  etc. , 
35,  36.)  Other  things  no  doubt  contributed  materially; 
but  without  this  promise,  upon  which  Wheelock  relied,  it  is 
safe  to  say  that  ' '  the  school ' '  never  would  have  been  re- 
moved to  New  Hampshire. 

After  Landaff  had  been  occupied  for  some  time,  ques- 
tions arose  as  to  the  validity  of  the  judgment  of  forfeiture 
entered  up  by  Wentworth  and  his  council  without  notice, 
which  preceded  the  grant,  and  the  trustees,  declining  to  enter 
into  litigation,  lost  the  grant  in  1787  ;  but  in  1789  the  State 
replaced  it  by  that  already  referred  to. 

The  rivalry  between  New  Hampshire  towns  for  the  loca- 
tion was  intensely  bitter.  As  late  as  1770,  the  trustees  in 
New  Hampshire  instructed  Wheelock  to  locate  at  Landaff,  or 
within  a  mile  of  it.  Situated  as  he  was  with  reference  to 
all,  it  became  a  matter  of  policy  on  the  part  of  Wheelock 
to  transfer  the  formal  responsibility  of  fixing  the  location  to 
the  board  of  trust  who  held  the  foreign  funds  of  the  school 
and  were  responsible  for  their  "  due  application."  Whee- 
lock, in  his  "  Narrative,"  says  :  — 

"The  determination  of  the  site  of  this  school  now  appeared  to 
be  an  affair  so  public  and  so  important,  and  that  in  which  so  many 
gentlemen  of  character  were  now  interested,  and  therefore  so 
delicate,  that  I  could  not  thhik  it  prudent  to  attempt  it  mj^self ,  but 
to  refer  it  wholly  to  the  decision  and  determination  of  the  honora- 
ble trust  in  England,  who  had  condescended  to  patronize  the 
institution  by  becoming  sureties  to  the  generous  donors  for  the 
due  application  of  the  monies  collected  in  South  Britain  for  the 
only  use  and  benefit  of  it ;  and  accordingly,  I  faithfully  repre- 
sented to  them  the  case,  and  all  the  reasons  which  were  offered  in 
favor  of  the  respective  places  to  which  it  was  invited,  in  order 
fully  to  enable  them  understandingly  to  give  the  preference,  and 
determined  to  be  governed  mj'self  wholly  by  their  determination 
thereon.  In  consequence  of  which,  for  many  weighty  reasons, 
they  gave  the  preference  to  the  western  part  of  the  province  of 
New  Hampshire,  on  Connecticut  river,  and  determined  that  to  be 
the  place  for  it. ' ' 


THE    CHARTER.  27 

Nothing  can  be  clearer  than  that  all  this  refers,  not  to  a 
college,  but  to  the  charity-school. 

The  negotiations  for  a  charter  between  Wheelock  and 
Governor  Wentworth  were  carried  on  through  Wheelock' s 
agents,  and  by  correspondence. 

For  twelve  years  prior  to  this  time,  the  clergy  of  the  Con- 
gri'eorationalist  denomination  of  eastern  and  middle  New 
Hampshire  had  in  vain  sought  to  obtain  a  charter  for  an 
academy  or  a  college.  They  applied  to  Governor  Benning 
Wentworth  for  it.  He  was  friendly  to  the  Presbyterians, 
but  a  member  of  the  Church  of  England,  and  much  attached 
to  its  interests.  In  his  grants  of  townships  he  reserved  a 
right  for  the  benefit  of  his  church.  When  the  application 
was  made  to  him  for  a  charter,  he  refused  to  grant  it  unless 
the  institution  was  put  under  the  direction  of  the  Bishop  of 
London. 

Wheelock  did  not  ask  for  a   charter  for  a  colleofe.      He 

o 

made  no  formal  petition  or  '  *  application ' '  for  a  charter  for 
any  thing. 

The  board  of  trust  were  opposed  to  any  incorporation  for 
the  school  even.  In  his  letter  of  April  7,  1769,  to  Dr. 
Langdon,  Wheelock  says,  referring  to  the  board  of  trust : 
"  The  afiair  is  very  delicate,  and  as  such  must  be  conducted, 
or  it  will  disgust  those  who  are  the  gentlemen,  and  overset 
all.  Their  sentiments  of  an  incorporation  have  been  differ- 
ing from  mine.  They  have  insisted  that  I  should  conduct 
the  whole  affiiir  without  one,  and  that  my  successor  should 
be  nominated  and  appointed  by  my  will.  Experience,  they 
think,  has  fully  taught  them  that  hy  means  of  an  incorpora- 
tion, such  designs  become  jobs,  and  are  soon  ruined  thereby. 
They  choose  to  hold  the  moneys  collected  there  in  their  own 
hands  for  this  purpose,  and  accordingly  have  publicly  de- 
clared their  trust  of  the  same  under  their  hands  and  seals, 
and  have  disposed  of  it,  as  their  wisdom  directed,  for  the 
l)enefit  of  the  school."  (Smith's  Historj'-  of  Dartmouth 
College,  etc.) 


28  DARTMOUTH  COLLEGE  CAUSES. 

In  June,  1769,  Wheelock  wrote  to  Wentworth  :  *'  I  have 
been  making  some  attempts  to  form  a  charter  in  which  some 
proper  respect  may  be  shown  to  those  generous  benefjictors 
in  England  who  condescended  to  patronize  this  school,  and 
I  want  to  be  informed  whether  you  think  it  consistent  to 
make  the  trust  in  England  a  distinct  corporation,  with  power 
to  hold  real  estate,  &c.,  for  the  uses  and  purposes  of  this 
school." 

At  least  the  postscript  of  the  following  letter  is  impor- 
tant :  — 

Leban%  Aug.  22,  1769. 
Sir:  — May  it  please  y''  Excellency.  A  few  days  ago  I  rec'd 
from  the  Hon'^'  Trust  in  England  their  unanimous  preference  of 
y""  Western  part  of  y*"  province  for  the  site  of  my  school.  We 
had  just  before  been  advised  by  y"  public  prints  of  your  Excel- 
Ienc3''s  tour  to  Nova  Scotia,  which  necessitates  a  delay  of  y''  whole 
affair  till  you  return,  and  my  physician  advises  that  I  make  trial 
of  a  mineral  spring  near  Albany  for  the  recovery  of  my  health, 
which  I  design  (D.  V.)  soon  to  attempt.  As  it  is  near  the  season 
which  favors  my  aim  and  y*"  design,  and  which  will  likely  be  at 
the  expense  of  some  weeks,  by  which  means  likely  I  shall  not  be 
able  to  wait  upon  j'our  excellency  on  your  return,  however  I  shall 
appoint  my  son,  or  some  suitable  person  or  persons,  in  my  name 
to  wait  upon  you,  if  you  please,  to  know  your  determination  on  a 
rough  draft  of  a  charter  of  incorporation  for  the  academy  which  I 
herewith  transmit  and  humbly  submit  to  your  Excellency's  correc- 
tions. *  *  *  And  it  becomes  me  to  advise  your  excellency  by 
the  earliest  opportunity  of  the  so  interesting  determination  of  the 
Hon' Trust.  *  *  *  Considering  how  far  the  year  has  advanced, 
and  how  much  there  is  to  be  done  in  securing  the  donations  gen- 
erously made,  to  invite  and  encourage  its  settlement  in  your 
Province  (after  you  have  made  it  capable  of  the  disposal  of  them) 
before  I  can  with  prudence  or  honor  enter  upon  the  performance 
on  my  part,  and  when  these  steps  are  taken  I  shall  make  it  the 
object  of  my  attention  to  prepare  for  y"  removal  of  my  family  and 
school  by  next  June  if  possible,  which  I  think  I  can  have  no  ground 
to  expect  unless  the  spot  be  fixed  upon  and  all  materials  for  build- 
ing, &c.,  be  provided  this  fall  &  winter,  &  a  sufficient  number  of 
laborers  be  ready  to  enter  upon  the  work  early  in  the  spring. 


THE  SCHOOL  AND  ACADEMY.  29 

I  find  y*  a  great  number  of  the  best  sort  of  inhabitants  in 
these  parts  are  spirited,  and  much  engaged  to  remove  into  that 
country  and  settle  with  me,  which  strengthens  my  hope  that  the 
affair  will  be  owned  of  God,  and  be  made  eminently  beneficial  to 
that  new  and  wide  country,  and  that  I  may  live  to  enjoy  a  com- 
fortable settlement  there. 

That  your  excellency  may  live  long  to  bless  a  people  already 
happy  under  j'our  mild  and  prudent  administrations,  and  at  last 
receive  a  crown  of  righteousness  as  the  reward  of  grace  at  the  end 
of  your  toil,  is  the  earnest  prayer  of  him  who  is  with  highest  esteem 
&  respect. 

May  it  please  your  Excellency, 

Your  most  obedient  and  most  humble  servant, 

Eleazar  Wheelock. 

P.  S. — Sir,  if  you  think  proper  to  use  the  word  "college" 
instead  of  "academy,"  in  the  charter,  I  shall  be  well  pleased 
with  it. 

To  his  ExceWy  Gov"^  Wentivorth. 

Wheelock  had  been  gathering  funds  for  this  school,  by  sub- 
scription and  otherwise,  for  at  least  fourteen  years.  So  far 
as  appears,  not  a  penny  was  subscribed  or  pledged  after  this 
postscript  was  written,  and  before  the  granting  of  the  char- 
ter. Up  to  this  time,  he  had  never  suggested  to  any  authority 
supposed  to  have  power  to  incorporate,  that  he  desired  a 
charter  for  a  college  or  university. 

Wheelock  had  many  agents,  but  his  principal  ones  in  rela- 
tion to  the  charter  were  his  son-in-law,  Phelps,  and  Rev. 
Dr.  AVhittaker. 

The  following  correspondence  clears  up  many  things 
which  have  not  hitherto  been  understood.  Governor  Went- 
worth,  in  his  letter  to  Wheelock,  of  October  18,  1769,  says  : 
*' Colonel  Phelps  has  this  morning  show' d  to  me  your  let- 
ter 5th  Oct.  You  are  sensible,  Sir,  of  my  earnest  disposi- 
tion to  serve  the  public  Charity  under  your  care.  My  Con- 
duct both  here  and  in  Europe  testify  for  me.  I  wish  my 
private  Abilities  were  more  equal  to  support  an  enlarged 
liberality,  yet  what  is  given  is  with  a  willing  heart.      I  am 


30  DARTMOUTH  COLLEGE  CAUSES. 

certain  there  must  have  been  an  important  misunderstanding 
of  my  proposal  convey' d  to  you.  Without  entering  into 
the  accident,  I  wish  now  to  be  explicit,  and  am  sure  that 
you  nor  no  other  catholic  Christian  can  object.  As  many 
insinuations  have  been  and  are  yet  frequently  transmitting 
to  England,  to  depreciate  the  reputation  of  the  intended 
College,  insinuating  that  the  benevolent  Charity's  will  be 
applied  merely  and  exclusively  to  the  advancement  of  secta- 
ries and  particular  opinions,  ^vith  a  fix'd  view  to  discourage 
the  establish' d  Church  of  England,  it  is  not  only  important 
but  essential  that  such  ideas  should  be  exterminated,  therefore 
I  propos'd  to  add  the  present  Bishop  of  London  by  name  to 
the  Trust  at  Home  in  England,  solely  without  any  other  con- 
nection than  any  other  of  the  Geut^  mentioned  in  London  ; 
that  thereby  all  the  world  may  know  our  sincerity  and  uni- 
versal good  wishes  to  mankind  ;  at  his  demise  the  vacancy  to 
be  filled  up  by  selection,  as  of  other  members.  This  is  so 
open  and  candid  that  I  think  it  cannot  be  a  bugbear  to  any 
man  of  common  sense,  nor  objected  to  unless  upon  party 
principles,  incompatible  with  and  dishonorable  to  our  gener- 
ous plan  of  Education  and  government  propos'd,  and  am 
therefore  certain  that  in  this  light  you  will  not  only  see,  but 
approve  the  nomination,  which,  it  is  my  opinion,  will  be 
cordially  acceptable  to  the  respectable  trust  at  home,  who  I 
am  convinc'dwill  at  all  times  gladly  accede  to  so  respectable 
a  nomination,  w^  must  eminently  tend  in  that  country  and 
in  this  to  evince  the  extensive  principles  of  the  Society. 
The  nomination  of  the  three  provincial  Officers  to  be  of  the 
active,  influential  conducting  Trust  in  this  country,  I 
strongly  recommend,  but  do  not  insist  upon.  They  will  be 
a  natural  defense,  honor,  and  security  to  the  institution, 
which  perhaps  may  be  the  more  eligible  as  they  can't  be  sup- 
posed to  be  at  any  time  other  than  the  safest  and  most  nat- 
ural guardians  of  Education .  However  I  shall  not  insist  upon 
them,  yet  would  wish  so  well  to  the  design  as  to  be  desirous 
of  its  being  avail' d  of  such  an  Iionorable  patronage.     That  I 


wentworth's  views.  31 

did  not  mention  any  other  than  the  Gov'"  to  be  of  the  trust 
can  by  no  means  be  preclusive,  neither  did  I  so  intend  it. 
The  same  reason  would  operate  Equally  against  any  part, 
every  part  of  the  Charter  \v^  you  did  not  particularly  men- 
tion to  me.  It  was  indeed  show'd  on  my  side  that  the 
Gov'"  should  be  one.  But  by  no  reason  or  considerate  sup- 
position can  it  be  thence  infer" d,  the  only  one  ;  for  if  so, 
all  those  that  are  mentioned  by  you  must  also  be  contrary 
to  the  plan  —  which  I  by  no  means  suppose.  In  short,  sir, 
I  entertain  a  high  respect  for  the  Institution  as  proposed  to 
me  in  England,  and  since  in  America.  My  promises  I  will 
sacredly  make  good  and  exceed  them,  influenc'd  by  an 
ardent  desire  to  do  right  without  discrimination  of  sects  or 
names.  I  shall  at  all  times  seek  the  welfare  of  the  College, 
the  good  of  the  remote  part  of  the  province,  which  you 
intimate  may  (be  in  their  opinion)  crossed,  upon  the  general 
principles  of  Candor  and  rectitude,  w^  will  produce  the  just 
stability,  w^  you  are  politely  pleased  to  attribute  to  me, 
whatever  may  be  the  event,  believe  me  Sir,  I  am  hearty  in 
the  cause,  and  doubt  not,  as  we  profess  the  same,  that 
exi3lanations  of  sentiment  will  unite  our  judgment ;  at  least  I 
promise  you  that  however  I  may  have  in  future  to  blame  my 
head,  I  will  not  leave  the  least  self-reproach  upon  my  heart, 
either  for  too  rigid  requisitions  or  unsupported  deviating 
conclusions." 

Colonel  Phelps,  in  his  letter  of  October  19, 1769,  to  "VYhee- 
lock,  says  :  "I  this  morning  had  an  audience  y^  Gov.,  who 
appears  very  Friendly  to  you  personally  and  to  y^  School, 
and  I  conceive  he  was  not  understood  when  he  made  his  pro- 
posal to  add  y*"  Bishop  of  London  to  the  Trust,  he  says  he 
did  not  mean  that  he  should  be  of  y*^  Trust  on  this  side  the 
water,  but  of  y*"  Trust  in  England.  I  then  asked  how  he 
could  add  him  in  the  Charter,  which  upon  considering  he 
says  he  cannot,  but  only  recommend  him  to  y''  Gentlemen  of 
y*  Trust  at  home  to  elect  him,  which  if  they  would  comply 
with,  he  then  would  be  of  the  Trust.     I  then  urg'd  tliat 


62  DARTMOUTH  COLLEGE  CAUSES. 

he  could  not  be  made  non-elective,  to  which  he  consented. 
I  then  said  that  he,  as  Bishop  of  London,  could  not  I  con- 
ceiv'dbe  a  member  of  y®  trust  for  y*^  time  being,  and  upon 
y^  whole  y®  Gov"^  consents  to  make  a  charter,  only  inserting 
therein  a  Recommendatory  Clause  in  y®  Charter  to  y^  Trust 
at  Home  to  Elect  the  present  Bishop  to  be  one  of  the 
Trust  in  England  to  act  with  them  and  them  only, 
and  also  not  to  recommend  him  as  Bishop  to  be  one, 
but  only  considered  in  private  character,  and  that  his 
recommendation  shall  not  extend  to  his  successors.  I 
also  queried  with  the  Gov""  whether  y®  Trust  at  home 
could  add  him  to  their  number,  and  he  seems  to  think 
they  cannot  without  a  vacancy,  and  he  is  willing  even  to 
suppress  y®  said  Bishop  in  s'^  recommendation,  and  I  think 
he  will  consent  to  omit  the  addition  of  y^  President  of 
the  Council,  as  speaker  of  y^  House,  or  Judge  of  y^ 
Supreme  Court.  I  have  not  had  time  to  advise  with  but 
two  of  Y*^  Council  and  one  or  two  others,  they  are  wholly 
averse  to  a  Bishop  in  particular  being  concern' d  in  y^ 
School,  or  any  other  Non-Elective  member,  but  they  whose 
judg't  I  think  you  would  value  (Strict  Dissenters)  seem 
to  think  y*^  Bishop  of  London,  being  only  a  nominal  member 
of  y^  trust  in  England,  is  but  a  mere  matter  of  moon- 
shine and  not  worthy  of  much  consideration.  Y*^  Bearer  is 
desired  to  wait  on  you  with  this,  and  *  *  *  ye  Qov'^'"^ 
present  purpose,  as  I  have  mentioned,  should  be  so  dis- 
agreeable that  you  will  not  comply,  I  pray  you  would  write 
to  me  by  a  special  post,  who  may  be  here  by  Saturday 
of  next  week. 

"  Y*"  Trust  at  home  can,  if  they  please,  choose  y®  Bishop 
of  London  without  the  Gov''"^  recommendation,  and  they 
can  refuse  him  if  recommended. 

"  S',  please  to  recommend  me  to  my  wife,  to  whom  I 
can't  write  if  y®  Bearer  waits  for  this. 

"I  don't  think  y®  Gov*"  has  any  view  to  Clogg  y®  School 
by  recommending  y®  present  Bishop  of  London  to  y"  Trust 


PHELPS 'S    LETTER WHEELOCK's    REPLY.  33 

at  home  to  be  one  of  s*^  Trust  *  *  *  and  he  can't  if 
y^  Trust  at  home  shall  see  fit  to  elect  him,  have  any  influ- 
ence on  y^  School ;  this  is  y^  sentiment  of  y®  best  men  here, 
who  are  averse  to  y^  Church  *  *  *  y*^  Gov""  has  given 
up  almost  ever}''  thing  I  asked,  and  will  it  not  be  a  pity  to 
break  with  him  for  a  mere  circumstance,  if  the  school 
should  be  *  *  *  I  fear  he  will  not  be  its  benefactor, 
and  if  fixed  in  his  province,  I  believe  he  will  do  everything 
for  3^ou,  yours,  &  y^  School,  he  says  he  abhors  every 
thing  like  party,  and  I  don't  [believe]  he  is  a  Church- 
man." 

Wheelock  replied  to  Went  worth  as  follows:  *'I  have 
this  minute  rec'd  your  Excellency's  Favour  of  18th  inst., 
and  have  read  it  with  great  pleasure  and  satisfaction. 
The  bearer  of  it  having  been  retarded  in  his  Journey 
leaves  me  no  time  to  consult  a  Friend  in  the  case,  and 
make  this  return  to  your  proposal  by  the  time  fixed  for 
it  by  Col.  Phelps  ;  and  indeed  your  proposal,  since  you 
have  explained  it,  appears  so  condescending,  your  views  so 
catholic,  3^our  motives  so  great,  your  reasonings  so  strong, 
and  your  friendship,  integrity,  and  iiprightness  therein  so 
evident  as  scarcely  leave  room  for  hesitation,  or  any  appre- 
hension of  any  need  I  have  of  council,  in  order  to  a  full 
compliance  with  what  you  propose,  viz.  To  add  the  pres- 
ent Bishop  of  London  by  name  to  the  Trust  at  home  in 
England  solely ;  without  any  other  connection  than  any 
other  of  the  gentlemen  mentioned  in  London,  that  thereby 
the  world  may  know  our  sincerit}^  and  universal  good  wishes 
to  Mankind,  and  at  his  demise  the  vacancy  to  be  filled  up 
by  Election  as  of  another  Member.  —  This  indeed  appears 
to  be  as  safe  a  passage  thro'  the  straits  between  8cylla  and 
Oharybdis  as  perhaps  can  be  tho't  of ;  and  yet  I  conceive 
the  bare  mention  of  the  name  of  Bishop  in  this  affjiir  will 
give  offence  to  numbers,  tho'  I  cannot  see  at  present  but 
their  offence  must  be  groundless,  and  I  will  therefore  run 
the  venture  of  the  consequences.     But  what  authority  your 


34  DAKTMOUTll  COLLKGE  CAUSES. 

Excellency  or  any  other  man  may  have  to  add  him  to  that 
trust,  or  whether  anything  more  can  be  done  than  to  express 
a  desire  that  he  might  be  one,  is  out  of  my  Province  to 
determine. 

"  I  here  present  you  a  Narrative  lately  printed  in  London, 
in  which  your  Excellency  may  see  a  copy  of  their  declara- 
tion of  their  Trust,  and  perhaps  be  thereby  assisted  in  form- 
ing your  judgment  in  that  matter.  I  perfectly  agree  with 
your  Excellency's  sentiments  of  the  importance  of  exter- 
minating all  Ideas  that  the  benevolent  charities  are  designed 
to  be  applied  merely  and  exclusively  to  the  advancement  of 
Sectaries  and  particular  opinions,  with  a  fixed  view  to  dis- 
courage the  established  Church  of  England  —  yet,  as  the 
reigning  Distempers  &  Prejudices  of  our  Day  are,  and  con- 
sidering also  the  vast  disadvantage  of  an  unwieldy  Body, 
and  more  so  by  having  the  IMembers  at  a  great  distance,  I 
am  glad  your  Excellency  will  not  insist  upon  the  addition 
of  the  Pro\dncial  Officers  3'ou  mentioned.  And  if  your 
Excellency  shall  see  fit  in  your  Wisdom  &  Goodness  to 
compleat  the  Charter  desired,  and  it  will  be  the  least  satis- 
faction to  you  to  christian  the  House  to  be  built  after  your 
own  name,  it  will  be  exceeding  grateful  to  me,  &  I  believe 
to  all  concerned  ;  and  that  God  may  lengthen  out  your 
important  Life  to  bless  the  rising  Institution,  and  make  to 
you  thereby  a  name  better  than  of  Sons  and  Daughters  even 
to  the  latest  Posterity,  will  be  the  fervent  prayer  of  him 
who  is  with  the  most  sincere  respect  and  esteem,"  etc. 

In  1768,  there  were  but  eight  lawyers  in  New  Hampshire, 
and  apparently  none  of  them  were  consulted  by  Wheelock 
in  relation  to  the  charter.  Wheelock  drafted  a  charter 
himself,  —  not  an  application  for  one,  —  with  such  assist- 
ance as  he  procured  from  his  counsel,  who  were,  probably, 
William  Smith  and  William  Smith,  Jr.,  of  New  York; 
George  Willys  and  John  Ledyard,  of  Hartford,  Connecti- 
cut. William  Parker,  of  Portsmouth,  New  Hampshire, 
was  apparently  the  sole  legal  adviser  of  Governor  Went- 


COUNSEL WHEELOCK's    DRAFT.  35 

worth,  and  the  changes  made  in  the  "  draught  of  the 
charter,"  to  a  great  extent,  were  undoubtedly  the  work  of 
his  hand. 

Judge  Parker  was  born  in  Portsmouth,  New  Hampshire, 
in  1703  ;  was  a  tanner  by  trade,  and  after  he  became  of  age 
was  a  school-master.  Later  he  studied  law,  and  was  admit- 
ted to  the  bar  in  1732,  and  in  1737  was  clerk  of  the  com- 
missioners to  settle  the  line  between  New  Hampshire  and 
Massachusetts.  Later  he  was  register  of  probate;  in  1765, 
a  representative  to  the  Assembly;  and  in  1771,  a  justice 
of  the  Superior  Court.  He  was  self-educated,  and  died  in 
Portsmouth,  April  29,  1781,  aged  seventy-seven. 

Judge  Parker,  in  his  letter  to  Wheelock,  of  October  28, 
1769,  says  :  "I  have  had  an  opportunity  of  confering  with 
Col.  Phelps  on  the  affair  of  the  college  proposed  to  be 
erected  here. 

'•'  You  will  find  some  alterations  in  the  scheme  &  draft 
of  the  charter.  They  are  supposed  to  be  amendments,  and 
I  think  they  (to  say  the  least)  will  not  be  impediments.  I 
cannot  stay  to  enumerate  them,  the  charter  will  show  them 
&  the  Col .  will  be  able  to  explain  the  gi-ounds  and  reasons 
of  them.  I  have  spent  some  considerable  time  with  the 
governor  to  form  the  plan  in  such  a  manner  as  will  make  it 
most  beneficial,  and  to  prevail  on  him  to  make  such  conces- 
sions as  would  suit  the  gentlemen  with  you.  I  am  apt  to 
think  the  plan  will  be  more  serviceable  as  it  now  stands 
than  it  was  before.  I  shall  be  glad  to  serve  the  cause,  and 
have  persuaded  Col.  Phelps  to  communicate  it  before  the 
finishing  stroke  tho.  it  will  cost  him  another  journey.  I 
have  only  to  add  that  I  am  with  great  esteem,"  etc. 

The  Wheelock  draft  is  still  in  existence,  and  apparently 
in  the  handwi-iting  of  Sylvanus  Ripley,  Wheelock' s  rela- 
tive and  bosom  friend.  We  have  carefully  compared  this 
draft  with  the  charter. 

About  two-thirds  of  a  page  in  print  was  struck  out  of 
the  original  draft,  and  two  pages  and  a  half  added  to  the 


36  DARTMOUTH  COLLEGE  CAUSES. 

charter.  Some  of  these  changes  were  vital.  "  In  this  the 
title  is  '  Dartmouth  Academy,'  instead  of  '  Dartmouth  Col- 
lege,' and  Dr.  Wheelock  is  called  the  founder  of  the  school^ 
and  not  of  the  academy.  The  words  are;  '  "We  appoint 
our  trusty  and  well  beloved  Eleazar  Wheelock,  doctor  in 
divinity,  the  founder  of  the  said  school,  to  be  president  of 
said  Dartmouth  academy.'^  (Memoir  of  Eleazar  Wheelock, 
by  Dr.  Allen,  Am.  Quar.  Register,  August,  1837.) 

The  governor  struck  out  the  names  of  some  of  the  trus- 
tees inserted  in  the  "  draught,"  and  added  the  names  of  six 
Connecticut  clergymen,  retaining  his  own  name  and  that  of 
one  member  of  the  Connecticut  colonial  government ;  and 
contrary  to  the  expressed  wish  of  Wheelock,  inserted  the 
names  of  four  of  the  provincial  officers  of  New  Hampshire. 
He  also  struck  out  the  names  of  Ralph  Wheelock  and  Samuel 
Kirtland. 

Wentworth,  and  not  Dartmouth,  was  the  chief  benefactor 
and  patron  of  the  institution,  and  it  should  have  borne  his 
name;  "and  this,  in  fiict.  Dr.  Wheelock  authorized  his 
agent,  in  the  negotiation  al>out  the  charter,  to  propose  to 
the  governor."  (Memoir  of  Eleazar  Wheelock,  by  Dr. 
Allen.) 

How  the  institution  came  to  be  named  for  Dartmouth 
may  never  l)e  known.  Such  a  thing  was  manifestly  no  part 
of  Wheelock' s  original  intention  or  purpose.  It  did  not 
originate  with  Dartmouth  or  the  London  trustees.  They 
not  only  knew  nothing  about  it,  but  were  bitterly  opposed 
to  the  charter  and  establishment  of  the  College  when  they 
found  it  out.  The  probabilities  are  that  it  was  proposed 
l)y  Wheelock,  to  avert  the  storm  which  he  must  have  known 
would  follow,  and  that  Governor  Wentworth  acquiesced  for 
the  same  reason. 

On  Marcii  12,  1770,  Wheelock  enclosed  to  Dartmouth  a 
copy  of  the  charter,  saying  :  "  Governor  Wentworth  thought 
best  to  reject  that  clause  in  my  draught  of  the  charter  which 
gave  the  honorable  trust  in  England  equal  power  with  the 


CHANGES LOCATION    OF    THE    COLLEGE.  37 

trustees  here  to  nominate  and  appoint  the  president  i'loni 
time  to  time,  apprehending  it  would  make  the  body  too 
unwieldy,  but  he  cheerfully  consented  that  I  should  express 
my  gratitude  and  duty  to  your  Lordship  by  christianing  after 
your  name,  and  as  there  seemed  to  be  danger  of  many 
embarrassments  in  many  ways  in  the  present  roughened  and 
distempered  state  of  the  kingdom,  I  thought  prudent  to 
embrace  the  first  opportunity  to  accomplish  it." 

The  wishes  of  Governor  Wentworth  were  disregarded  in 
relation  to  the  location  of  the  CoUei^e.  In  his  letter  of 
January  29,  1770,  to  Wheelock,  he  says:  "Col.  Phelps 
is  very  justly  desirous  to  have  some  certain  to^vn  deter- 
mined on  immediately  for  the  site  of  Dartmouth  College. 
It  is  scarcely  possible  to  give  any  proper  advice  upon  the 
subject,  unless  I  know  what  soil  was  in  each  toAvn,  and 
the  other  interest,  circumstances  of  reward  or  gratuity  w^ 
wou'd  arise  from  any  particular  people  obtaining  it  within 
their  district.  Yet  from  all  I  can  at  present  gather,  either 
Bath  or  Haverhill  have  the  most  advantages.  As  to  the 
particular  spot  in  either  of  these  towns,  it  can  only  be 
chosen  by  actual  and  intelligent  survey,  perhaps  cmteris 
paribus,  the  center  of  either  may  be  expedient  for  com- 
munications with  others.  I  wish  that  the  college  may  have 
the  gov*  of  the  town  wherever  it  stands,  as  is  usually  in 
England.  This  cannot  be  so  easily  had  in  Landaff,  which 
upon  all  accounts  is  much  my  preference,  but  by  no  means 
my  positive  determination,  which  will  be  much  inclin'd  to 
pursue  your  advice  in  it.  Upon  the  whole,  I  consent  to 
Bath,  Landaff,  or  Haverhill.  The  college  to  have  at  least 
one  hundred  acres  adjoining,  &  to  stand  not  less  than  a 
mile  from  the  River.  I  have  great  pleasure  in  hearing,  by 
Mr.  Cushman,  of  your  good  health,  and  sincerely  wish  you 
every  blessing." 

Wheelock,  in  his  "  Narrative,"  after  setting  forth  in  detail 
the  offers  made  if  he  would  locate  the  school  in  other  juris- 
dictions, and  what  was  promised  if  it  should  be  located  in 


38  DARTMOUTH  COLLEGE  CAUSES. 

New  Hampshire,  and  stating  the  promised  grant  of  land 
(as  b}'  "THE  King's  most  gracious  Majesty,  by  advice  of 
his  Excellency  John  Wentworth,  Esq.  ;  his  Majesty's  Gov- 
ernor of  the  province  of  New  Hampshire,  and  of  his  council, 
a  Charter  of  the  township  of  Landaff,  about  24,000  acres," 
which  was  followed  by  a  printed  list  of  subscriptions  several 
pages  in  length),  says,  in  relation  to  the  charter :  — 

"My  next  business  was  to  secure  the  generous  donations  made 
to  it  in  said  province.  And  in  order  thereto,  having  consulted  the 
principal  gentlemen  of  the  law,  in  this  and  the  neighbouring 
provinces,  who  unanimously  advised  that  an  incorporation,  if  it 
could  be  obtained,  was  the  only  course  I  could  take  that  would  be 
safe  for  the  institution,  *  *  *  i  therefore  fixed  upon  this  as 
my  next  and  immediate  object,  *  *  *  and  accordingly  I 
employed  a  proper  agent  to  solicit  his  Excellency  Governor  Went- 
worth, whom  God  has  raised  up  to  serve  the  interests  of  the  great 
Redeemer,  in  his  province,  and  who  appears  to  be  unwearied  in 
doing  good,  and  by  him  have  obtained  a  generous  charter,  by  the 
name  of  DARTMOUTH  COLLEGE,  endowed  with  all  the  powers 
and  privileges  of  a  university,  with  which  this  school  is  connected, 
and  to  which  it  is  designed  to  be  subservient,  and  is  by  said  char- 
ter invested  with  the  donations  made  to  it  in  said  province,  though 
the  school  itself  remains  under  the  same  jurisdiction  and  patron- 
age as  before. 

"But  as  neither  the  honorable  trust  in  England,  nor  the  charter 
had  fixed  upon  the  particular  town  or  spot  on  which  the  buildings 
should  be  erected.  Wherefore  to  complete  the  matter,  as  soon  as 
the  ways  and  streams  would  allow,  I  took  the  Rev.  Mr.  Pomeroy, 
and  Esq.  Gilbert,  (a  gentleman  of  known  ability  for  such  a  pur- 
pose,) with  me  to  examine  thoroughly,  and  compare  the  several 
places  proposed  within  the  limits  prescribed,  for  fifty  or  sixty 
miles  on,  or  near  said  river ;  and  to  hear  all  the  reasons  and  argu- 
ments that  could  be  offered  in  favor  of  each  of  them,  in  which 
service  we  faithfully  spent  eight  weeks,  and  in  consequence  of  our 
report,  and  representation  of  facts,  the  trustees  unanimously 
agreed  that  the  southwesterly  corner  of  Hanover,  adjoining  upon 
Lebanon,  was  the  place  above  any  other  to  fix  it  in  ;  and  that  for 
many  reasons.     *     *     * 


UNIVERSITY SCHOOL.  39 

"  The  charter  of  this  school  requiring  the  meeting  of  the  corpo- 
ration within  a  3'ear  from  the  date  of  it,  I  did  therefore,  as  was 
requisite  to  save  the  forfeiture  of  it,  call  a  meeting  of  the  trustees 
on  the  22d  day  of  October. — At  which  meeting  it  was  proposed 
to  the  trustees  whether  something  could  not  be  done  by  them  to 
perpetuate  the  name  and  deed  of  Mr.  Joshua  Moor,  late  of  Mans- 
field, in  Connecticut,  deceas'd ;  who  was  the  first  considerable 
benefactor  to  the  school  when  it  was  obscure,  and  by  many 
esteemed  contemptible,  and  after  taking  the  matter  into  considera- 
tion, it  was  resolved  that  they  had  no  right  by  the  charter  to  do 
anything  in  that  matter,  and  that  the  charter  gives  the  trustees  no 
right  of  jurisdiction  hut  over  the  college;  and  that  the  school  remains 
still  under  the  same  2^citronage,  authority  and  jurisdiction  as  it 
vjas  under  before  the  charter  loas  given.'" 

One  of  the  rules  established  for  the  government  of  the 
institution  provided :  — 

"Lastly,  That  this  Indian  charity-school,  connected  with  Dart- 
mouth College,  be  constantly  hereafter,  and  forever,  called  and 
known  by  the  name  of  floor's  School.  *  *  *  And  I  would 
also  take  this  opportunity  to  advise  the  generous  subscribers,  in 
the  Colony  of  Connecticut,  and  province  of  Massachusetts  Bay, 
&c.,  who  have  not  yet  paid  their  subscriptions  made  in  the  year 
1755,  and  following,  for  the  only  use,  benefit,  and  support  of  this 
school  (the  yearly  interest  whereof  was  pa3^able  on  condition,  and 
so  long  as  the  school  should  be  continued,  and  the  principal  to 
become  payable  as  soon  as  the  school  should  become  a  body  corpo- 
rate, and  thereby  capable  of  the  tenure  and  disposal  of  land,  <&c. ), 
that  I  suppose  the  said  subscriptions  are  noio  become  payable  by 
this  incorporation,  according  to  the  true  design  and  intention  of 
the  pious  subscribers.  *  *  *  As  to  the  surmises  and  preju- 
dices thereby  raised  at  a  distance,  that  I  have  changed  my  object, 
and  that  the  charitable  donations  made  for  the  use  of  this  school 
and  missionaries  are  in  whole  or  part  perverted  to  my  own,  or 
some  other  English  design,  &c.,  were  it  not  for  the  operation  of 
these  slanders  beyond  my  acquaintance,  I  should  not  think  it 
worth  my  pains  to  say  a  word  about  them.     *     *     * 

"  I  have  invariably  kept  the  same  object  in  view,  and  there  has 
not  been  a  step  taken,  nor  a  stroke  struck  by  me  or  my  order,  in 


40  DARTMOUTH  COLLEGE  CAUSES. 

the  whole  affair  of  my  removing,  settling  and  accommodating 
myself,  family,  and  this  seminary  in  this  wilderness,  but  what  has 
been  meant,  calculated,  devised,  and  designed,  to  be  in  direct 
subserviency  to  my  first  object,  viz.,  the  gospelizing  the  Indians; 
nor  lias  there  been  anything  done  here  (excepting  what  I  or  others 
have  done  at  our  own  expense),  hut  it  mxist  have  heen  done  if  an 
English  college  had  never  heen  thought  of.  The  Indians  are  the 
first  object  in  the  charter.,  and  the  first  object  designed  by  all  the 
lands  secured  thereby,  and  of  many  other  subscriptions  and  dona' 
tions  made  to  it.  And  there  never  has  been,  from  the  first  to  this 
hour,  du'ectly  or  indirectly,  one  farthing  of  the  money  collected 
on  either  side  of  the  water,  for  the  use  of  my  Indian  school,  or 
for  the  support  of  missionaries,  improved  for  my  own,  or  my 
family's  support,  or  for  anj?-  other  purpose,  with  my  knowledge  or 
consent." 

The  ' '  Narrative  ' '  further  sets  out  the  circumstances  under 
which  £500  were  given  hy  tlie  General  Assembly  of  the 
province,  £200  sterling  by  the  king,  the  Pliillips  donation, 
and  others.  On  July  30,  1770,  one  of  the  trustees,  re- 
ferring to  Dartmouth  and  Thornton,  wrote  to  Dr.  Whee- 
lock:  "  They,  as  well  as  the  other  trustees,  see  clearly  that 
by  the  affair  of  the  charter,  the  trust  here  is  meant  to  be 
annihilated.  It  was  certainly  a  very  wrong  step  for  you  to 
take  without  consulting  us." 

Dr.  Wheelock,  in  his  reply  of  November  9,  1770,  three 
months  after  his  removal  to  Hanover,  says:  "There  was 
no  design  on  the  part  of  any  of  the  trustees  in  Connecticut  to 
annihilate  the  trust  in  England  ;  "  on  the  contrary,  he  says, 
* '  that  the  Connecticut  trustees  desired  that  the  trustees  in 
England  should  have  not  only  the  patronage  of  the  school, 
but  of  the  college  too,  so  far  as  to  have  an  equal  share  in 
the  choice  of  a  president,  so  long  as  they  should  see  fit  to 
perpetuate  their  board,  and  so  the  charter  was  drafted, 
when  it  was  sent  to  Governor  Wentworth  ;  nor  have  I  ever 
heard  that  one  of  the  trustees  in  this  province  objected 
against  it,  but  the  governor,  apprehending  it  would  be  a 
burden   you    would    not    be    fond    of,    and   that    it  would 


MANDATE  OF  THE  BOARD  OF  TRUST.  41 

make  the  body  too  unwieldy,  rejected  that  clause  in  it. 
The  charter  means  to  incorporate  the  school  with  the  college, 
and  give  it  possession  of  the  donations  and  gi'ants  made 
in  tJiis  province  to  it.  But  the  charter  was  never  designed 
to  convey  the  least  power  or  control  of  any  funds  collected 
in  Europe,  nor  does  it  convey  any  jurisdiction  over  the 
school  to  the  trustees  of  the  colleije.  The  charter  oranted 
them  jurisdiction  only  over  the  college.  If  I  resign  my 
office  as  president  of  the  college,  I  yet  retain  the  same  rela- 
tion to  the  school  and  control  of  it  as  ever."  On  April  25, 
1771,  the  board  wrote  "Wheel  ock  the  following  letter  :  '*  We 
have  lately  taken  into  our  serious  consideration  the  affairs 
of  your  Charter,  and  the  matter  appears  to  us  in  the  same 
light  now  as  it  did  when  we  wrote  to  you  the  30th  of  July 
last.  When  we  consider  that  the  money  collected  here  was 
given  for  the  express  purpose  of  '  creating,  establishing, 
endowing  and  maintaining  an  Indian  '  Charity-school  and  a 
suitable  number  of  missionaries  to  be  employed  in  the 
Indian  Country,  for  the  instruction  of  Indians  in  the  Chris- 
tian *  Religion,'  and  for  no  other  purpose  whatsoever,  we 
cannot  but  look  upon  the  charter  you  have  obtained,  and 
your  intention  of  building  a  college  and  educating  Eng- 
lish youths,  as  going  beyond  the  line  by  which  both  you 
and  we  are  circumscribed.  The  motives  that  induced  the 
subscribers  to  contribute  so  generously  to  this  undertaking 
were  doubtless  the  hope  of  spreading  the  knowledge  of  the 
only  true  God  and  of  his  son  Jesus  Christ,  that  his  way 
might  be  knoAvai  on  those  dark  corners  of  the  earth,  and 
his  salvation  amono;  those  unenlio^htened  nations.  With 
the  same  views  and  upon  the  same  plan  we  formed  our- 
selves into  a  Trust  and  pledged  ourselves  to  the  subscribers 
as  the  guardians  of  their  contributions  to  see  them  faith- 
fully applied  (as  far  as  should  be)  to  the  purposes  above 
mentioned  and  no  other.  We  think  ourselves  bound  to 
adhere  invariably  to  this  original  plan,  and  must  therefore 


42  DARTMOUTH  COLLEGE  CAUSES. 

insist  upon  it  that  you  do  not  deviate  from  it.  We  shall 
expect  that  you  keep  a  regular  and  distinct  account  of  all 
the  monies  laid  out  in  erecting  the  school,  educating  Indian 
youths,  and  equipping  and  maintaining  missionaries  agree- 
able to  the  design  of  our  institution,  and  that  you  do  not 
blend  them  with  your  College,  and  other  matters  foreign 
to  and  separate  from  our  undertaking ;  that  you  do  not 
attempt  to  draw  bills  on  us  ui^on  any  other  consideration, 
but  that  you  keep  the  accounts  as  before  mentioned,  clear 
and  separate,  and  annually  transmit  them  to  us,  properly 
authenticated,  with  the  seal  of  the  Province  annexed ;  and 
moreover,  that  you  endeavor  to  compile  and  draw  up  a 
fresh  Narrative  as  a  continuation  of  that  drawn  up  by  us 
and  printed  in  17(59.  It  is  high  time  there  should  be  one, 
and  the  pul^lic  expect  it.  We  have  no  materials  by  us  since 
your  unhappy  division  with  Mr.  Kirtland.  His  separation 
from  you  renders  the  accounts  we  have  from  him  abortive, 
and  we  have  no  other,  so  it  entirely  rests  with  you,  and  if 
you  mean  to  stand  fair  in  the  eye  of  the  public,  or  hope 
for  any  further  assistance  from  them,  do  not  neglect  or 
delay  sending  over  such  a  narrative,  and  be  as  open  and 
explicit  as  possible.  We  are  desirous  of  strengthening 
your  hands  and  furthering  the  design  while  it  appears  to  be 
well  executed,  and  no  longer.  With  regard  to  Mr.  Kirt- 
land and  your  misunderstanding  one  another,  as  you  are 
parted,  our  interfering  will  not  avail.  Dr.  Whitaker  has 
sent  us  a  long  letter  in  your  behalf,  and  others  have 
informed  us  as  fiivorably  on  Mr.  Kirtland' s  ;  all  we  can  say 
of  him  is  to  wish  him  well,  and  that  the  Lord  may  own  and 
bless  his  labors  among  the  Indians,  and  abundantly  supply 
his  place  with  other  missionaries  in  your  connection.  You 
have  and  will  continue  to  have  our  warmest  wishes  for  your 
success  in  the  great  and  important  work  of  bringing  Indians 
to  the  faith  of  Christ,  and  you  may  depend  upon  having 
our  best  support  in  anything  that  comes  within  the  limits 


WHEELOCK   OBEYS.  .  43 

of  the  design,  bejond  which  we  do  not  think  ourselves  at 
liberty  to  apply  the  money  that  has  been  deposited  in  our 
hands."  This  letter  was  signed  by  Dartmouth,  S.  S. 
Smythe,  John  Thornton,  Chas.  Hardy,  Dan'l  West,  Sam'l 
Savage,  and  Rob't  Keen.  This  letter  cannot  be  misunder- 
stood.    Wheelock  obeyed  its  mandate. 


CHAPTEK    II.  — Continued. 

Wheelock  died  April  24,  1779.  His  last  will  was  appar- 
ently executed  April  2,  1779.  In  it  he  says:  "I  have 
founded  on  my  own  tenement,  and  at  my  own  expense,  an 
Indian  Charity-School,  now  called  Moor's  Charity-School ;" 
sets  out  that  he  is  the  founder  thereof,  ' '  and  as  founder 
and  proprietor  thereof,  as  well  as  by  grant  in  said  charter," 
undertakes  "  to  dispose  of  said  school,  and  all  donations, 
and  grants  of  land,  and  other  interests  any  way  given  or 
granted  for  the  benefit  of  said  school,"  and  appointed  his 
son  his  "successor  in  said  office  of  president  of  my  Indian 
Charity-School  and  Dartmouth  College,"  etc. 

By  it  he  gave  two  acres  of  land  to  the  college.  After 
referring  to  the  Indian  school,  he  says  :  "  To  this  charity- 
school,  I  do  give  and  bequeath  the  stream  called  Mink 
Brook,  with  mills,"  etc.  He  also  gave  his  servant-boy, 
Archelaus,  his  freedom,  upon  certain  conditions,  when  he 
should  attain  the  age  of  twenty-five  years.  The  bequest, 
etc.,  to  the  College  and  that  to  the  school  were  as  distinc- 
tive from  each  other  as  was  this  to  the  slave.  On  June  14, 
1785,  the  Legislature  of  Vermont  granted  to  the  school  and 
to  the  College,  each,  one-half  of  the  township  of  Wheelock, 
Vermont,  which  was  six  miles  square.  The  terms  of  the 
grant  were  distinctly  to  "  the  said  Wheelock  as  president, 
and  his  successors  in  office,  to  have  and  hold  the  one  moiety 
of  said  premises  as  above  described  solely  and  exclusively 
for  the  use  and  benefit  of  said  school  forever,  and  the  said 
trustees  and  their  successors  in  office  to  have  and  to  hold 
the  other  moiety  solely  and  exclusively  for  the  use  and 
benefit  of  said  Dartmouth  College  forever." 

(44) 


THE  SCHOOL THE  COLLEGE.  45 

At  a  regular  meeting  of  the  Board  of  Trustees  of  Dart- 
mouth College,  holden  at  said  College,  May  7,  1789,  the 
following  preamble  and  resolutions  were  adopted  :  — 

Representations  having  been  made  to  this  board  that  appre- 
hensions have  arisen  in  the  minds  of  some  persons  that  monies  col- 
lected in  Great  Britain  by  the  Revd.  Messrs.  Whitaker  and  Occom 
for  the  use  of  Moor's  Charity- School  under  the  direction  of  the 
Revd.  Dr.  Wheelock  have  been  applied  by  this  board  to  the  use 
and  benefit  of  Dartmouth,  — 

Resolved  that  this  board  have  never  had  any  control  or  direc- 
tion of  said  monies,  nor  have  they  to  their  knowledge  at  any  time 
received  or  appUed  any  sum  or  sums  thereof  to  the  use  &  benefit 
of  sd.  college,  but  on  the  most  critical  examination  relative 
thereto,  we  are  convinced  this  board  have  ever  considered  them- 
selves as  having  no  concern  with  the  application  of  the  said  monies, 
but  that  they  were  subject  to  the  application  of  the  late  Rev'd. 
Dr.  E.  Wheelock  «&;  his  successors  in  the  Presidency  of  Moor's 
Charitj^-School,  &  those  only ;  nor  have  they  to  their  knowledge 
any  interest  in  their  hands  on  which  revenues  have  arisen  to  them 
as  the  effect  of  monies  laid  out  by  Dr.  Wheelock  or  others,  which 
were  of  monies  collected  by  Dr.  Whitaker  and  Mr.  Occom  in 
Great  Britain  as  aforesaid ;  and  should  any  such  in  future  arise, 
it  is  the  sense  and  intention  of  this  board  that  such  revenues  be 
applied  by  Dr.  Wheelock' s  successors  solely  to  the  objects  for 
which  those  donations  in  Great  Britain  were  made. 

On  June  10,  1807,  the  Legislature  of  New  Hampshire 
passed  the  following  act,  entitled  "  An  act  more  eifectually 
to  define  and  improve  the  charitable  establishment  known 
by  the  name  of  the  President  of  Moor's  Charity-School,  and 
the  powers  and  duties  of  the  President  thereof,  and  to  con- 
stitute a  board  to  assist  in  directing  the  expenditures  of 
the  funds  of  said  school "  :  — 

Whereas  a  school  was  a  long  time  since  founded  by  the  late 
Rev.  Eleazer  Wheelock,  S.  T.  D.,  who  was  President  or  director 
thereof,  and  also  President  of  Dartmouth  Cohege,  which  was 
formerly  and  still  is  known  by  the  name  of  Moor's  Charity-School, 
as  well  as  Moor's  Indian  Charity-School,  and  has  since  the  death 


46  DARTMOUTH  COLLEGE  CAUSES. 

of  said  Eleazer  been  kept  up  and  continued  at  Hanover  in  this 
State,  by  the  Hon.  John  Wheelock,  LL.D.,  President  thereof 
and  of  Dartmouth  College,  as  the  successor  of  said  Eleazer,  as 
President  of  said  College  and  said  school,  — 

And  whereas  money  and  valuable  donations  and  grants  have 
been  made  of  property  in  America  for  the  benefit  of  said  school,  not 
only  to  the  said  Eleazer,  but  to  the  said  John,  the  successor  of 
said  Eleazer  in  the  office  of  President  or  director  thereof,  consid- 
ered as  being  distinct  in  its  objects  from  Dartmouth  College,  — 

And  whereas  it  has  always  been  considered  that  Dartmouth 
College  and  Moor's  Charity-School  are  different  branches  of  the 
same  institution,  and  that  the  President  of  said  college  ever  has 
been  and  ever  should  be  President  of  said  school ;  and  as  the 
trustees  of  said  college  have  not  considered  that  they  had  any 
oflScial  right  to  be  concerned  in  the  application  of  the  funds  of 
said  school,  and  as  it  is  the  desire  of  the  President  and  deemed 
by  the  friends  of  the  institution  advisable  that  the  President  in 
the  application  of  the  funds  of  said  school  should  act  by  and 
with  the  advice  and  concurrence  of  other  persons,  — 

Therefore,  Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives in  General  Court  convened,  that  the  said  John  Whee- 
lock, President  of  Dartmouth  College,  and  his  successors  in  Office 
for  the  time  being,  appointed  agreeably  to  the  Charter  of  said 
College,  whether  by  the  last  will  of  the  President  preceding  or 
otherwise,  shall  forever  hereafter  be,  and  hereby  is  declared  to  be 
the  President  of  Moor's  Charity  School,  and  the  Board  of  Trustees 
of  Dartmouth  College  for  the  time  being  shall  forever  hereafter 
be  and  hereby  is  declared  to  be  the  Trustees  of  said  School ;  and 
that  said  School  as  a  Corporation,  and  as  heretofore  considered 
for  the  purposes  aforesaid  may  and  shall  be  known  and  called 
hereafter  by  the  name  of  the  President  of  Moor's  Charity-School; 
and  that  said  President  with  the  advice  and  consent  of  said 
Trustees  may  and  shall  expend  the  issues  and  avails  of  all  the 
funds  and  property  of  said  school  for  the  uses  intended  by  the 
donors.  Provided  nevertheless  that  the  funds  of  said  College 
and  School,  and  their  proceeds,  shall  be  distinct  and  separate  ;  and 
that  nothing  herein  contained  shall  be  considered  as  having  any 
concern  with  the  funds  in  the  care  of  the  Hon.  Society  in  Scot- 
land for  propagating  Christian  Knowledge,  or  as  interfering  with 


LEGISLATION.  47 

their  rights  of  inspection,  or  as  affecting  any  other  property 
belonging  to  said  School,  than  such  as  has  been  or  may  be  here- 
after granted  in  America  for  the  use  and  benefit  of  said  school. 

And  the  funds  of  the  school  have  been  so  kept  and  admin- 
istered to  this  day.  All  these  important  grants,  commencing 
with  that  of  the  town  of  Wheelock,  besides  largo  donations, 
were  secured  through  the  exertions  of  the  second  Wheelock. 

A  protest  against  the  act  of  June  27,  1816,  was  prepared 
by  the  trustees,  signed  by  most  of  the  minority,  and  spread 
upon  the  legislative  records.  In  that,  fourthly,  "they 
protest,  because  if  this  act  can  have  any  legal  opera- 
tion without  the  consent  of  the  trustees  under  the  char- 
ter, it  must  in  effect  destroy  the  former  corporation,  and 
consequently  endanger  the  funds  belonging  to  the  College  ; 
especially  the  valuable  township  of  Wheelock,  granted  to 
the  College  and  Moor's  School  by  the  State  of  Vermont. 
So  sensible  did  the  House  of  Representatives  appear  to  be 
of  this  consequence,  that  they  refused  so  to  amend  the  act 
as  to  make  the  State  of  New  Hampshire  responsible  for  the 
losses  the  College  might  sustain  by  reason  of  passing  the 
act  protested  against." 

The  charity-school  from  the  outset  was  a  preparatory 
school. 

The  gazetteers  show  that  at  times  the  school  numbered 
between  fifty  and  sixty  scholars.  The  hand-books  say  that 
it  ceased  to  exist  as  a  separate  and  distinct  institution  iu 
1846.  The  records,  however,  show  that  Asa  Weeks  was 
the  last  "  preceptor  "  of  Moor's  School,  and  that  he  ceased 
to  occupy  that  position  in  1849.  The  treasurer  of  the  Col- 
lege has  never  had  any  thing  to  do  "vvith  the  funds  of  the 
school. 

The  entire  management  has  been  in  the  hands  of  the 
president  alone.  A  scanty  fund  still  exists.  Indians  still 
have  the  benefit  of  this  fund,  though  they  take  the  same 
courses,  enter  the  same  classes,  and  receive  the  same 
instruction  as  other  students. 


48  DARTMOUTH  COLLEGE  CAUSES. 

If  they  fail  to  pass  examination  when  they  apply  for 
admission,  they  are  sometimes  sent  to  a  neighboring  academy 
as  a  "preparatory  school." 

We  transcribe  from  the  original  draft,  among  the  Whee- 
lock  papers,  the  following  deed  of  trust :  — 

To  all  the  x>&ople  to  tvhom  these  x>resents  shall  come,  greeting. 

Whereas  Eleazar  Wheelock  of  Lebanon  in  the  county  of 
Windham  and  Colony  of  Connecticut  in  New  England,  in  America, 
doctor  of  divinity,  Lath  heretofore  with  great  zeal  and  diligence 
and  of  his  own  accord,  founded  a  charity-school  within  the  said 
town  of  Lebanon  in  the  colony  aforesaid,  with  the  sole  view  and 
design  of  civilizing  and  gospelizing  the  Indian  natives  of  North 
America,  in  which  (with  the  smiles  of  heaven)  he  hath  been 
hitherto  very  successful ;  and  may  in  time  bring  about  (with  the 
same  blessing)  that  most  happy  and  important  event ;  towards  the 
encouragement  of  which  great  and  laudable  undertaking,  there 
have  been  made  to  the  said  Eleazer  Wheelock,  both  in  Europe  and 
America,  many  valuable  gifts,  grants,  contributions  and  dona- 
tions, and  especially  those  of  late  so  genei'ousl}^  given  and  collected 
in  Great  Britain,  upon  the  application  and  address  of  that  worthy 
undertaker,  the  Revnd.  Doctor  Nathanael  Whitaker  commissioned 
and  appointed  for  that  purpose  by  the  said  Eleazer  Wheelock,  and 
by  and  with  the  advice  and  influence  of  those  noble  and  generous 
friends  and  benefactors,  the  right  Hon'^'*^  William  Earl  of  Dart- 
mouth, Mr.  Baron  Smythe,  John  Thornton,  Samuel  Roffey,  Charles 
Hardy  and  Daniel  West,  Esquires,  Mr.  Samuel  Savage,  Mr.  Josiah 
Eobarts,  and  Mr.  Robert  Keen,  all  of  London  in  Great  Britain 
aforesaid,  who  voluntarily  became  guarantees  to  the  public  for  the 
due  application  of  the  monies  that  should  be  there  collected  for 
and  in  behalf  of  the  said  Eleazer  Wheelock  for  the  design  and 
purpose  aforesaid. 

And  whereas  by  means  thereof  it  hath  pleased  the  Almighty, 
who  hath  the  hearts  of  all  men  in  his  hands,  to  dispose  many  free 
and  charitable  people  both  in  England  and  Scotland  to  give  and 
contribute  to  the  said  Eleazer  Wheelock  for  the  establishing  and 
promoting  the  institution  aforesaid  many  large  sums  of  money, 
amounting  nearly  to  the  sum  of  £11,000  sterUng  money  of  Great 
Britain  aforesaid,  which  said  monies  have  been  received  and  put 


THE    DEED    OF    TRUST.  49 

into  the  hands  of  the  aforesaid  right  Hon'^'*^  WilHam  Earl  of  Dart- 
mouth, Mr.  Baron  Smythe,  John  Thornton,  Samuel  Roffey,  Charles 
Hardy  and  Daniel  West,  Esquires,  Mr.  Samuel  Savage,  Mr.  Josiah 
Robarts,  and  Mr.  Robert  Keen,  who  now  hold  the  same  for  the 
said  Eleazer  Wheelock  untill  further  advice  and  order  necessary 
thereto  be  by  him  given  for  the  better  securing  and  improving 
the  said  monies  and  donations,  and  the  interests  and  profits  thereof 
for  the  uses  and  purposes  aforesaid. 

And  whereas  it  may  so  happen  that  further  gifts  and  dona- 
tions may  hereafter  be  made,  both  in  Europe  and  America, 
towards,  and  for  the  furtherance  of  the  undertaking  and  purposes 
aforesaid,  for  the  well  being,  ordering  and  disposing  whereof,  as 
well  as  of  those  which  have  been  so  generously  contributed  as 
aforesaid,  it  will  be  necessary  that  a  board  of  trustees  be 
nominated  and  appointed  by  me  the  said  Eleazer  Wheelock,  in 
Europe  and  America,  with  several  and  distinct  powers  and  in- 
structions and  to  several  purposes ;  for  the  taking  and  receiving 
all  gifts,  grants,  subscriptions  or  donations  made  or  to  be  made 
on  each  side  of  the  water;  for  the  nse,  support  and  due  regula- 
tion of  said  school,  and  the  missionaries  and  officers  thereof,  that 
may  or  shall,  from  time  to  time,  be  appointed ;  and  also  to  dispose 
of  and  improve  the  same,  according  to  the  true  intent,  will  and 
meaning  of  the  donors,  and  for  the  advancement  of  the  great 
and  good  ends  proposed  thereb3^ 

Now  therefore  know  ye  that  I  Eleazer  Wheelock,  for  the 
considerations  aforesaid,  and  for  divers  other  weighty  and  good 
reasons  me  thereunto  moving,  (and  committing  the  affair  to  the 
wise  Disposer  of  all  things,)  do  nominate  and  appoint  my  much 
honoured  and  worthy  friends  aforesaid,  the  Right  Hon'^'^  William 
Earl  of  Dartmouth,  Mr.  Baron  Smythe,  John  Thornton,  Samuel 
Roffey,  Charles  Hardy  and  Daniel  West,  Esquires,  Mr.  Samuel 
Savage,  Mr.  Josiah  Robarts  and  Mr.  Robert  Keen  to  be  trustees 
as  aforesaid.  And  I  do  also  by  these  presents  give,  grant  and 
make  over  unto  them  the  Right  Hon'''^  William  Earl  of  Dartmouth, 
Mr.  Baron  Sm5'the,  John  Thornton,  Samuel  Roffey,  Charles  Hardy 
and  Daniel  West,  Esquires,  Mr.  Samuel  Savage,  Mr.  Josiah  Rob- 
arts and  Mr.  Robert  Keen,  and  to  their  successors  in  trust,  and 
for  the  sole  use  and  purpose  aforesaid,  all  such  grants,  gifts,  sub- 
scriptions or  donations,  as  have  been  or  may  hereafter  be  made 


50  DARTMOUTH  COLLEGE  CAUSES. 

or  given,  of  any  kind  or  iu  any  way  whatsoever  thro'  their  hands 
means  or  influence,  and  also  all  such  monies,  gifts  or  grants,  already 
collected  and  by  them  received,  or  to  be  received  in  any  parts  or 
places  in  Europe  for  the  uses  and  benefits  aforesaid,  for  them  and 
their  successors,  to  have,  hold,  dispose  of  and  improve  in  the  best 
way  and  manner,  only  for  the  uses  aforesaid  under  such  limita- 
tions and  regulations  as  shall  hereafter  be  mentioned ;  and  to  do 
whatsoever  they  shall  judge  proper  and  necessary  to  be  done  on 
that  side  the  water,  for  the  security,  well-being,  prosperity,  suc- 
cess, and  increase  of  the  whole  design  in  view.  And  in  case  of 
the  death  or  resignation  of  any  of  the  aforesaid  nine  gentlemen, 
such  vacancy  be  declared  and  others  chosen  by  a  majority  of  the 
remaining  trustees  to  fill  up  suoh  vacancy  or  vacancies,  of  such 
men  as  are  of  the  Protestant  Reformed  religion,  and  who  believe 
the  Scriptures  according  to  the  publick  standards  of  the  Protestant 
churches. 

I  do  also  nominate  and  appoint  one  (whom  I  have  named  in 
my  last  will)  to  be  my  successor  in  the  immediate  care,  oversight, 
guidance  and  direction  of  this  whole  affair,  reserving  to  him  all 
the  power,  privilege,  jurisdiction,  and  authority  which  I  now 
have  or  may  have,  in  and  about  the  premises,  so  long  and  under 
such  limitations  and  restrictions,  as  shall  hereafter  be  mentioned. 

I  do  also  nominate  and  appoint  my  faithful  and  trusty  friends 
Col.  William  Pitkin,  Esqr.  of  Hartford,  the  Revnd.  Benjamin 
Pomeroy  of  Hebron,  the  Revnd.  James  Lockwood  of  Weathers- 
field,  the  Revnd.  Timothy  Pitkin  of  Farmington,  the  Revnd. 
Nathaniel  Whitaker,  D.D.  of  Norwich,  the  Revnd.  William  Pat- 
ten of  Hartford,  and  my  son  Ralph  Wheelock,  all  of  the  Colony 
of  Connecticut,  and  the  Revnd.  Samuel  Kirtland  missionary,  or 
any  others  whom  I  shall  think  fit  in  my  last  will  to  add  to  their 
number  or  appoint  in  their  stead  to  be  trustees  of  all  the  dona- 
tions that  have  been,  or  shall  hereafter  be  made,  in  the  American 
colonies  for  the  use,  support,  and  benefit  of  the  school  and  mis- 
sionaries as  aforesaid ;  and  to  them  the  trustees  last  mentioned  I 
give,  grant,  and  make  over  a  lot  of  land  or  tenement  in  the  second 
society  in  Lebanon  aforesaid  given  originally  by  Mr.  Joshua 
Moore  of  Mansfield  in  said  colony,  and  since  confirmed  to  me  by 
a  deed  from  his  widow  for  the  use  and  support  of  said  school ; 
together  with  the  subscriptions  made  by  diverse  well  disposed 


THE    DEED    OF    TRUST.  51 

persons  in  these  colonies  for  tlie  support  and  benefit  of  tlie  same  ; 
and  any,  and  all  other  real  or  personal  estate  that  has  been  or 
shall  be  given  or  any  way  conveyed  or  made  over  to  this  school 
and  missionaries,  or  to  me  for  the  use  and  benefit  of  the  same ;  to 
them  the  trustees  last  mentioned  and  to  their  successors,  to  have 
and  to  hold,  or  alienate  and  dispose  of,  as  they,  or  the  major  part 
of  them  shall  judge  best,  only  for  the  uses  aforesaid.  And  that 
they  or  any  five  of  them  the  whole  being  duly  notified  (by  letters 
from  my  successor  or  otherwise,)  of  the  time  and  place  of  meet- 
ing, shall  have  full  power  to  choose  another  trustee  if  they  shall 
think  fit,  and  then  to  confirm  the  appointment  I  have  made  of  my 
successor,  or  to  chase  another  of  their  number  in  his  stead  ;  and 
that  the  same  so  chosen  to  be  mj^  successor,  be  approved  by  the 
right  honorable,  noble  and  worthy  gentlemen  of  the  trust  in  Eng- 
land, otherwise  that  a  new  nomination  be  made  by  either  set  of 
trustees,  till  one  be  found  on  which  all  may  unite,  and  that  the  one 
appointed  by  the  trust  on  this  side  of  the  water,  shall  officiate  as 
my  successor  till  that  matter  be  settled. 

And  I  do  further  order  and  appoint,  that  my  successor  be 
from  time  to  time  appointed  by  will,  with  the  advice  or  approba- 
tion both  of  the  trustees  here  and  in  England,  forever,  or  untill 
a  legal  incorporation  shall  be  obtained  ;  and  that  he  be  approved 
by  each  of  the  boards  of  trustees,  or  that  another  be  by  them 
chosen,  as  aforesaid.  And  in  case  my  successor  or  successors  shall 
be  without  will,  that  one  be  chosen  by  both  sets  of  trustees  as 
aforesaid,  and  that  he  who  shall  be  appointed  by  the  trustees  in 
America,  oflaciate  till  that  matter  be  settled  as  aforesaid.  And 
in  case  of  any  vacancy  by  the  death  or  resignation  of  any  of  the 
trustees  here,  that  such  vacancy  or  vacancies  be  supplied  by 
others  chosen  by  the  major  part  of  the  remaining  trustees. 

And  it  shall  be  the  duty  of  the  American  trustees  to  examine 
and  authorize  missionaries  and  school  masters  and  appoint  them  to 
their  respective  services  and  judge  of  their  skill  and  fidelity  in 
performing  the  same  ;  and  accordingly  to  place  and  continue,  or 
displace  and  remove  them,  as  they  shall  judge  fit ;  and  do  any- 
thing for  the  help  and  assistance  of  my  said  successor,  in  the 
vigorous  prosecution  of  the  said  great  design.  And  to  appoint 
determine  and  fix  upon  laws  rules  and  orders,  for  the  due  govern- 
ment, edification,  decency  and  good  economy  of  the  whole  affair 


52  DARTMOUTH  COLLEGE  CAUSES. 

on  this  side  of  the  water,  as  they  shall  from  time  to  time  judge 
necessary  submittuig  the  same  to  the  correction  and  approbation 
of  the  trustees  in  England. 

Also  that  my  successors  keep  a  faithful  and  fair  account  of 
all  the  expenses  and  disbursements  in  this  whole  affair,  and  trans- 
mit the  same  twice  a  year  with  an  account  of  all  successes  and 
remarkable  occurrences,  to  the  trust  in  England.  And  also  that 
he  shall  do  the  same  with  respect  to  any  new  plan  which  he  or  the 
trust  here  shall  think  fit  to  introduce  in  the  ijrosecution  of  this 
design,  when  and  as  soon  as  there  is  an  opportunity  for  it,  and  if 
it  may  be,  before  he  enters  upon  the  execution  of  it,  in  order  for 
the  approbation  of  the  trust  in  England.  And  the  account  being 
thus  kept  and  transmitted,  my  successor  or  successors  shall  have 
power  to  draw  for  monies  as  occasion  shall  require,  and  the  trust 
in  England  shall  not  have  right  to  pi'otest  any  bill  or  draughts 
made  upon  their  treasurer  to  pay  any  expenses,  made  before  my 
successor  shall  have  received  notice  of  their  disapprobation  of 
the  measures  he  is  pursuing.  And  I  hope  in  God,  who  hath 
hitherto  so  marvellously  appeared  to  maintain  and  promote  this 
cause,  which  is  his  own,  that  he  will  yet  take  care  of  it  and  per- 
form the  highest  wishes  and  hopes  of  his  saints  concerning  it; 
and  particularly  that  he  will  yet  further  open  the  hearts  of  such  as 
he  hath  endowed  with  ability  to  provide  a  lasting  fund  for  the  sup- 
port, not  only  of  the  school,  but  of  the  president,  instructors, 
and  other  officers  necessary  for  the  same. 

And  I  do  by  these  presents  bind  myself,  &c.,  that  the  plan 
aforesaid  shall  not  by  me  be  altered,  without  the  consent  and 
approbation  of  the  trust  in  England,  but  shall  remain  and  be  the 
form  and  manner  of  the  school,  only  reserving  to  myself  the  lib- 
erty to  change  my  successor  or  to  nominate  another  instead  of 
him  who  is  now  named  in  my  will,  and  also  to  add  two  trustees 
more  than  are  now  named,  or  remove  either  of  these,  and  appoint 
another  or  others  in  their  stead,  if  I  shall  think  it  expedient. 

The  College  charter,  iu  the  form  of  "Letters  Patent, 
under  the  publick  seal  of  the  Province,"  issued  on  Decem- 
ber 13,  1769.  It  was  recorded  in  the  office  of  the  Secre- 
tary of  the  Province,  December  18,  1769,  and  the  corpora- 
tion was  duly  organized  under  it,  October  22,  1770.     The 


CHARTER GRANTED BY    AVIIOM.  53 

charter,  in  theory,  was  granted  by  George  III.,  the  same  as 
all  writs  in  the  province  were  issued  in  his  name  ;  but  in  fact 
it  was  grantcdby  John  Wentworth,  governor  of  the  province, 
without  the  knowledo;e  of  the  kinof  or  the  Home  Office. 

The  royal  commission  to  Governor  John  Wentworth  is  a 
very  elaborate  document,  covering  nine  long  pages  in  print, 
and  details  the  powers  conferred  upon  him  with  great  minute- 
ness ;  yet  nowhere  in  terms,  or  by  any  reasonable  implica- 
tion, does  it  confer  upon  him  the  power  of  chartering 
colleges,  or  any  other  form  of  what  are  termed  private 
corporations . 

The  charter  declared  Dr.  Wheelock  the  founder,  made 
him  the  first  president  of  the  College,  and  authorized  him, 
by  his  last  will,  to  appoint  his  successor. 

The  following  grant  was  made  by  Governor  Wentworth, 
months  before  the  acceptance  of  the  charter  by  the  trustees  : 

Province  of  New  Hampshire. 

George  the  third  by  grace  of  God  of  Great  Britain,  France  and  Ireland 
King,  Defender  of  the  faith,  &  so  forth. 

To  all  people  to  loliom  these  ijresents  come,  greeting. 

Whereas  many  liberal  &  pious  Donations  both  in  Europe  & 
America  have  been  made  for  the  purpose  of  civilizing  &  educating 
Indians,  &  for  the  furtherance  of  christian  knowledge,  — •  apd 
whereas  the  most  extensive  good  will  undoubtedly  result  from 
such  a  wise  &  generous  design  both  to  the  cause  of  Christianity 
&  knowledge  and  also  to  our  service  &,  the  permanent  security  of 
our  Colonies  by  reclaiming  the  savages  to  virtuous  knowledge  & 
social  subordination  to  the  Laws  and  also  enabling  our  good  sub- 
jects in  those  remote  parts  of  our  dominions  to  acquire  learning 
and  thereby  preventing  their  insensibly  &  unavoidably  sinking  into 
an  ilUterate  and  savage  state  unhappy  to  themselves  &  dangerously 
dishonorable  to  good  government,  and  whereas  a  College  hath  by 
us  been  incorporated  «fc  erected  by  the  name  of  Dartmouth  College 
under  the  great  seal  of  our  said  Province,  for  these  and  man};- 
other  equally  worthy  &  commendable  purposes  of  the  like  nat- 
lu-e,  —  Now  Know  ye,  that  for  these  purposes,  we,  of  our  special 
grace,  certain  knowledge  &  mere  motion,  and  for  the  due  encour- 


54  DARTMOUTH  COLLEGE  CAUSES. 

ageraeut  of  settling  a  new  plantation  within  our  said  Province, 
b}'  and  with  the  advice  of  our  trusty  and  well  beloved  John  Went- 
worth  Esquire  our  Governor  &  Commander  in  chief,  in  &  over  our 
said  Province  of  New  Hampshire  in  New  England  and  of  our 
Council  of  the  same,  Have  upon  the  conditions  and  reservations 
hereinafter  made  given  &  granted  &  by  these  presents  for  us  our 
heirs  and  successors  do  give  &  grant  as  a  public  donation  to  the 
Trustees  of  Dartmouth  College  (lately  incorporated  and  erected 
in  this  our  said  Province)  and  to  their  successoi'S  in  that  trust  for 
the  use  and  benefit  of  said  College  and  to  their  assigns  a  certain 
tract  or  parcel  of  land  commonly  called  and  known  by  the  name 
of  Landaff,  situate,  lying,  and  being  within  our  said  Province  & 
containing  by  admeasurement  twenty-five  thousand  two  hundred 
and  fort3'-se\'en  acres,  three  roods  &  ten  perches,  out  of  which  an 
allowance  is  to  be  made  for  highwa3's  &  unimprovable  lands  by 
rocks,  ponds,  mountains  &  rivers,  one  thousand  &  forty  acres  free 
according  to  a  plan  &  survey  thereof  exhibited  by  our  Surveyor 
General  of  lands  for  our  said  Province  by  our  said  Governor's 
order  &  returned  into  the  Secretary's  office,  a  copy  whereof  is 
hereunto  annexed,  butted  &  bounded  as  follows,  vizt:  — 

[Description  omitted.] 

To  have  and  to  hold  the  said  tract  of  land  as  above  expressed 
together  with  all  the  privileges  &  appurtenances  to  them  the  said 
Trustees  of  Dartmouth  College  in  their  said  capacity  &  to  their 
successors  in  said  Trust  &  to  their  assigns  for  the  use  and  benefit 
of  said  College  forever  by  the  name  of  Landaff  upon  the  following 
terms,  conditions  &  reservations,  vizt. :  First,  that  there  shall  be 
settled  &  resident  on  the  premises  sixty  families  by  the  expiration 
of  four  years,  vizt.,  twelve  families  in  one  year  from  the  first  day 
of  March  next,  also  twelve  families  more  in  the  next  year,  vizt., 
by  the  first  day  of  March  1772,  also  twelve  families  more  in  the 
third  year,  vizt.,  by  the  first  day  of  March  1773,  and  also  twenty- 
four  families  more  in  the  fourth  j^ear,  vizt.,  by  the  first  day  of 
March  which  will  be  in  the  year  of  our  Lord  1774,  on  penalty  of 
the  forfeiture  of  any  &  every  delinquent's  share  &  of  such  share 
or  shares  reverting  to  us,  our  heirs  &  successors,  to  be  by  us  or 
them  entered  upon  &  regi-anted  to  such  of  our  subjects  as  shall 
effectually  settle  aud  cultivate  the  same.  Second,  that  all  white 
and  other  pine  trees  within  the  said  Township  fit  for  masting  our 


GRANT   TO    THE    COLLEGE.  55 

royal  navy  be  caref nil}'  preserved  for  that  use  &  none  to  be  cut  or 
felled  without  our  special  license  for  so  doing  first  had  &  obtained 
on  penalty  of  the  Forfeiture  of  the  right  of  any  proprietor  pos- 
sessor or  settler  to  us  our  heirs  &  successors,  as  well  as  being 
subject  to  the  penalties  prescribed  by  any  present  as  well  as  future 
act  or  acts  of  Parliament.  Third,  that  a  site  for  a  town  plot  be 
within  one  year  laid  out  by  the  Trustees  in  such  part  of  the  said 
Township  as  they  shall  find  best  for  settlement  of  at  least  one 
hundred  and  fifty  families  to  each  an  acre,  which  town  plot  shall 
be  laid  out  in  streets  parallel  to  each  other  so  as  to  intersect  at 
right  angles,  the  two  middle  streets  to  be  one  hundred  «&;  thirty 
feet  wide,  and  all  other  streets  to  be  at  least  sixty  feet  wide. 
Fourth,  that  there  be  cut,  cleared  &  made  passable  for  carriages 
a  road  of  four  rods  wide  through  the  said  tract  &  this  to  be  com- 
pleted in  two  years  from  the  date  of  this  grant,  in  failure  whereof 
the  premises  to  revert  to  us,  our  heirs  &  successors.  Fifth,  yield- 
ing and  paying  therefor  to  us,  our  heirs  &  successors  on  or  before 
the  first  day  of  March  1779,  the  rent  of  one  ear  of  Indian  corn 
only  if  lawfully  demanded.  Sixth,  that  every  proprietor  settler  or 
Inhabitant,  shall  yield  &  pay  unto  us,  our  heirs  &  successors 
yearly  &  every  year  forever  from  and  after  the  expiration  of  one 
year  from  the  above  said  first  day  of  March,  vizt. ,  on  the  first  day 
of  March  which  will  be  in  the  year  of  our  Lord  Christ  1780,  one 
shilling  proclamation  money  for  every  hundred  acres  of  land  he 
so  owns,  settles  or  possesses  &  so  in  proportion  for  a  greater  or 
lesser  tract  of  the  said  land,  which  money  shall  be  paid  by  the  re- 
spective persons  above  said  their  heirs  &  assigns  in  our  Council 
Chamber  in  Portsmouth  or  to  such  officer  or  officers  as  shall  be 
appointed  to  receive  the  same.  Seventh,  that  any  of  the  said 
tract  appearing  to  be  well  adapted  to  the  growth  of  hemp  or  flax, 
there  shall  be  annually  cultivated  &  improved  a  due  proportion  of 
the  said  land  not  less  than  ten  acres  in  every  thousand  acres  with 
that  beneficial  article  of  produce  &  these  to  be  in  lieu  of  all  rents 
&  services  whatsoever.  In  testimony  whereof  we  have  caused  the 
seal  of  our  said  Province  to  be  hereunto  affixed.  Witness  John 
Wentworth  Esquire  our  Governor  &  commander  in  chief  in  &  over 
said  Province  of  N.  H.  the  nineteenth  day  of  January  in  the  tenth 
year  of  our  Reign  Anno  que  Domini  1770. 
Recorded  Jan'y  22,  1770. 


56  DARTMOUTH  COLLEGE  CAUSES. 

PROvrNCE  OF  Nkw  Hampshire. 

George  the  Second  by  the  grace  of  God  of  Great  Britain,  France 
[l.  s.]  and  Ireland  King,  Defender  of  the  Faith,  &c. 

To  all  to  whom  these  presents  shall  come,  Greeting. 

Whereas  we  did  by  our  letters  patent  under  the  seal  of  our 
Pi'ovince  aforesaid  dated  the  thirteenth  day  of  December  17fi9 
erect  &  incorporate  a  college  within  our  said  Province  by  the  name 
of  Dartmouth  College  for  the  laudable  purpose  of  spreading 
Christianity  among  the  Indians,  and  we  did  also  thereby  erect  & 
incorporate  certain  of  our  loving  subjects  therein  named  into  a 
body  corporate  &  politic  &  their  successors  to  have  continuance 
forever  &  to  be  known  &  distinguished  as  the  Trustees  of  Dart- 
mouth College  «fe  by  that  name  to  receive,  purchase  &  possess  & 
enjoy  lands,  tenements,  hereditaments,  jurisdictions  and  franchises 
for  themselves  and  successors  in  fee  simple  &,  to  erect  any  houses 
or  buildings  as  they  may  think  needful  and  convenient  for  the  pur- 
poses of  said  college,  all  which  will  more  fully  appear  by  reference 
to  our  said  letters  patent.  And  it  being  represented  unto  us  that 
the  said  Trustees  have  accordingly  erected  part  of  the  build- 
ings of  the  said  college  on  a  tract  of  land  of  about  five  hundred 
acres  situate  in  the  southwesterly  angle  of  the  town  of  Hanover 
in  our  said  Province  which  tract  as  yet  remains  ungranted 
by  us,  — 

Know  Ye  therefore  that  of  our  special  grace  &  favour  for  re- 
claiming the  Savages  to  virtuous  knowledge  &.  by  and  with  the 
ad%ice  of  our  trusty  &  well  beloved  John  Wentworth  Esq.  our 
Gov""  &  Commander  in  chief  in  &,  over  our  said  Province  &  of  our 
Council  of  the  same  Have  upon  the  conditions  and  reservations 
hereinafter  made  given  &  granted  &  by  these  presents  for  us,  our 
heirs  &  successors  to  give  and  grant  unto  the  Trustees  of  Dart- 
mouth College  &  to  their  successors  in  that  trust  for  the  use  & 
benefit  of  the  said  College  &  to  their  assigns,  three  hundred  acres 
of  land  being  the  particular  spot  on  which  said  College  stands,  the 
same  being  butted  &  bounded  as  follows :  — 

[Description  omitted.] 

To  have  and  to  hold  the  said  tract  of  land  as  above  expressed 
together  with  all  the  privileges  &  appurtenances  to  them  the  said 
Trustees  of  Dartmouth  College  in  their  said  capacity  &  to  their 


GRANT    TO    WHEELOCK.  57 

successors  in  that  trust  &  their  assigns  for  the  use  &  benefit  of 
said  College  forever,  upon  the  terras  hereafter  mentioned.  And 
in  consideration  of  the  faithful  endeavours  of  our  trusty  &  well 
beloved  Eleazer  Wheelock,  Doctor  in  Divinity  the  present  Presi- 
dent of  our  said  College  to  further  &  promote  the  general 
advantage  &  benefit  of  the  same,  particularly  in  his  having  gener- 
ously made  a  donation  of  four  hundred  acres  of  land  in  the  said 
Town  of  Hanover  to  the  said  College  we  have  by  &  with  the  advice 
aforesaid  &  by  these  presents  do  give  &  grant  unto  the  said 
Eleazer  Wheelock  &  to  his  heirs  &  assigns  forever  two  hundred 
acres  of  land  being  the  remaining  part  of  the  aforesaid  five 
hundred  acres  butted  &  bounded  as  follows :  — 

[Description  omitted.] 

To  have  &  to  hold  the  said  two  hundred  acres  of  land  to  him 
the  said  Eleazer  Wheelock  &  to  his  heirs  &  assigns  forever  upon 
the  following  terms,  conditions  &  reservations,  viz  —  First,  That 
a  road  of  three  rods  wide  be  cut,  cleared  &  made  passable  for  car- 
riages of  all  kinds  through  each  of  the  tracts  of  land  aforesaid  as 
may  be  hereafter  directed  or  ordered  by  the  Gov""  &  Council  afore- 
said. Second,  That  five  acres  for  every  fifty  acres  of  land  con- 
tained in  the  above  described  premises  respectively  be  improved, 
cultivated  &  planted  within  two  years  from  the  date  of  this  grant 
on  penalty  of  the  forfeiture  of  the  delinquents  right  in  these 
presents  &  of  its  reverting  to  us  our  heirs  &  successors.  Third, 
That  all  white  &  other  pine  trees  fit  for  masting  our  Royal  Navy 
be  carefully  preserved  for  that  use  &  none  to  be  cut  or  felled 
without  our  special  license  for  so  doing  first  had  &  obtained  on 
penalty  of  the  forfeiture  of  the  right  of  the  grantee  in  the  premises 
his  heirs  &  assigns  to  us  our  heirs  &  successors  as  well  as  being 
subject  to  the  penalties  prescribed  by  any  present  as  well  as 
future  act  or  acts  of  Parliament.  Fourth,  Yielding  and  paying 
therefor  to  us,  our  heirs  &  successors  on  or  before  the  nineteenth 
day  of  December  1774  the  rent  of  one  ear  of  Indian  corn  only,  if 
lawfully  demanded.  Fifth,  That  the  said  Trustees  and  their  suc- 
cessors in  their  capacity  aforesaid  &  the  said  Eleazer  Wheelock  his 
heirs  &  assigns  shall  respectively  yield  &  pay  unto  us  our  heirs  & 
successors  yearly  &  every  year  forever  from  &  after  the  expiration 
of  five  years  from  the  date  of  this  Grant  one  shilling  proclamation 
money  for  every  hundred  acres  contained  in  their  respective  rights 


58  DARTMOUTH  COLLEGE  CAUSES. 

in  the  premises  hereby  granted ;  which  money  shall  be  paid  as 
above  said  in  our  Council  chamber  in  Portsmouth  or  to  such 
officer  or  officers  as  shall  be  appointed  to  receive  the  same  &  these 
to  be  in  lieu  of  all  other  rents  &  services  whatsoever.  In  testi- 
mony whereof  we  have  caused  the  seal  of  our  said  Province  to  be 
hereunto  affixed. 

Witness  John  Wentworth  Esq.  our  aforesaid  Governor  &  com- 
mander in  chief  the  nineteenth  day  of  December  in  the  twelfth 
year  of  our  reign  A.  D.  1771. 

J.  Wentworth. 

By  his  Excellency's  command  &c. 

Theodore  Atkinson,  Secy. 

Wheelock,  in  his  letter  from  Lebanon,  Connecticut,  to 
Colonel  Phelps,  dated  I^ovember  20,  1769,  says:  "For 
your  direction  in  the  business  on  which  I  now  employ 
you,  I  need  only  give  you  some  general  hints,  and  leave 
you  to  conduct  the  whole  affair  according  as  your  own 
prudence,  wdth  the  advice  of  such  as  you  shall  see  fit  to 
consult,  shall  dictate.  When  his  excellency  Gov.  Went- 
worth has  given  me  the  charter,  &  you  have  got  it 
recorded,  let  the  deed  of  lands  given  to  the  school  & 
myself  be  executed,  in  which  let  your  eye  be  upon  having 
as  much  near  &  convenient  for  speedy  improvement  for 
the  present  support  of  my  family  &  school,  as  may  be. 
Bring  the  several  offers  made  to  induce  a  preference  for 
the  site  of  it  in  particular  places,  and  have  with  you  the 
estimate  of  judicious  &  impartial  men  relative  thereto,  and 
especially  his  excellency's  reasons  for  jDreferring  the  place 
he  shall  choose  to  fix  it  in. 

"  Give  my  duty  to  his  excellency  the  late  Govern'',  and  tell 
him  I  would  humbly  propose  to  his  consideration,  whether 
it  would  not  be  an  offering  well  pleasing  to  Christ  if,  in 
addition  to  all  his  acts  of  piety  and  charity,  he  should  set- 
tle a  pension  for  the  support  of  a  professor,  or  tutor,  or 
some  needy  youths  in  Dartmouth  College,  as  his  wisdom 
and  goodness  shall  direct,  and  the  benefited  person  to  bear 
his  name  and  so  perpetuate  his  memory  with  the  memory 


wheelock's  labors.  59 

of  his  deed,  to  the  latest  posterity.  Let  the  proposal  be 
properly  made  to  his  excellenc}'^,  and  I  am  persuaded  he  will 
gladly  embrace  the  opportunity  to  give  such  a  dying  testi- 
monial of  his  respect  to  the  kingdom  of  the  great  Kedeemer. 

"  See  what  donations  may  be  had  by  charitably  disposed 
gentlemen  of  materials  which  shall  be  necessary  for  the 
buildings,  such  as  glass,  putty,  coloring,  papering,  sj)ikes, 
nails,  for  floors,  ceiling,  enclosing,  shingling,  clapboarding, 
lathing,  locks,  latches,  *  *  *  hinges,  fire-shovels, 
tongs,  hand-u'ons,  &c. 

"  And  if  a  good  bell  should  be  offered,  don't  refuse  it. 

'<  See  what  provision  may  be  made  most  conveniently  for 
putting  seed  of  all  kinds  into  the  ground  seasonably  for  the 
support  of  my  family  and  school,  &  what  provision  for 
my  removal,  &  what  way  my  family  and  school  may  be 
supported  there  at  first,  &c. 

"  See  what  materials  for  building  may  be  had  on  the 
spot,  viz.,  of  boards,  shingles,  clapboards,  window  frames, 
sashes,  laths,  &c.,  stones,  limestone,  brick. 

"  And  how  laborers  of  all  kinds  may  be  employed  in  the 
cheapest  manner  for  the  school,"  etc. 

The  reference  to  the  late  governor  is  to  Benning  Went- 
worth. 

The  distinction  here  drawn  between  the  College  and  the 
school  is  as  marked  as  that  between  himself  and  either. 

The  following  exj^lains  the  grant  to  Wheelock  :  "In  the 
Memoirs  of  Dr.  Wheelock  it  is  stated  that  for  his  great 
labors,  eight  or  nine  years  president  of  the  College  and 
school,  professor  of  divinity,  and  pastor  of  the  church  in  the 
College,  he  received  no  salary,  his  only  compensation  being 
a  supply  of  provisions  for  his  family.  The  Legislature  of 
New  Hampshire,  after  the  College  was  established,  voted 
him  one  hundred  pounds. 

"  Governor  Wentworth  granted  him,  December  19,  1771, 
two  hundred  acres  of  land  in  Hanover,  in  consideration  of  his 
having  made  a  donation  of  four  hundred  acres  in  Hanover 
to  the  College.     The  history  of  tlie  affair  is  this  :  Benning 


60  DARTMOUTH  COLLEGE  CAUSES. 

Wentworth  had  given  five  hundred  acres  to  the  College, 
and  the  proprietors  of  the  town  had  given  Dr.  Wheelock 
four  hundred  acres.  At  the  first  meeting  of  the  trustees, 
October  22,  1770,  they  agreed  with  him,  at  his . request, 
to  exchanse  two  hundred  acres  out  of  the  five  hundred  for 
his  four  hundred  acres  ;  but  this  gift  proving  illegal,  Gover- 
nor John  Wentworth  made  the  grant  of  the  two  hundred 
acres  directly  to  Dr.  Wheelock,  Avho  allowed  the  College  to 
retain  the  four  hundred  acres  formerly  agreed  to  be  given 
for  the  same  two  hundred  acres."  (See  Memoir  of  Whee- 
lock, by  Dr.  Allen.) 

It  is  not  only  apparent  that  Governor  Wentworth  intended 
to  put  the  College  upon  the  same  footing  as  the  universities 
at  home,  with  which  he  was  familiar,  but,  from  the  "  Narra- 
tive," from  which  we  have  already  quoted,  that  Dr.  Wheelock 
regarded  the  charter  as  creating  a  university  ;  that  the  trus- 
tees in  the  most  solemn  manner,  for  years  even  after  the 
troubles  commenced,  so  denominated  the  institution.  Dr. 
Belknap,  the  unfriendly  critic  of  Wheelock,  who  was  familiar 
with  the  whole  history,  says  :  "  The  township  of  Hanover, 
on  the  eastern  l)ank  of  the  Connecticut  River,  was  finally 
determined  as  the  most  convenient  situation  for  the  school ; 
to  which  the  Governor  annexed  a  charter  of  incorporation 
for  an  university,  which  took  the  name  of  Dartmouth  Col- 
lege, from  its  benefactor,  the  Earl  of  Dartmouth.  Of  this 
University  Dr.  Wheelock  was  declared  the  founder  and 
president."    (2  Belknap's  History  of  New  Hampshire,  270.) 

Dr.  Wheelock' s  views  probably  appear  more  fully  than 
elsewhere  in  the  following  elaborate  memorial  to  the  Ver- 
mont Legislature :  — 

To  the  Honorable  the  General  Assembly  of  the  State  of  Vermont 
to  be  convened  at  Bennington  June,  1778. 
The  Memorial  of  the  Eev.  Elefizer  Wheelock  D.D.  President 
of  Dartmouth  College  on  Connecticut  River. 
Humbly  showeth 
That  Your  Memorialist  did,  at  his  own  expense  and  upon  his 
own  inheritance  above  20  years  ago  found  a  Charity-School  for  the 


THE    UNIVERSITY WHEELOCK's   MEMORIAL.  61 

education  of  the  Children  of  the  native  Savages  of  this  land  and 
also  such  Youth  of  the  English  as  should  appear  of  pregnant  parts 
and  piously  disposed  in  the  learned  Languages  and  all  the  liberal 
Arts  and  Sciences  and  especially  in  the  doctrines  and  principles 
of  our  holy  religion  in  order  to  qualify  them  to  spread  the  knowl- 
edge of  the  only  true  God  and  Saviour  and  to  advance  the  King- 
dom of  the  Redeemer  amongst  all  the  several  Nations  and  Parties 
of  Men  upon  this  Continent ;  and  by  the  blessing  of  God  on  his 
feeble  endeavors  many  Missionaries  and  School-masters  educated 
here  have  been  sent  forth  and  many  schools  set  up  and  children  of 
the  savages  taken  into  them  in  the  Wilderness  and  the  prospects 
were  so  encouraging  as  that  numbers  of  piously  disposed  Gentle- 
men not  only  in  America  but  Gentlemen  and  Noblemen  of  first 
characters  in  Europe  have  condescended  to  patronize  and  encour- 
age the  same.  And  generous  collections  were  made  for  the  sup- 
port and  furtherance  of  it  in  consequence  of  the  solicitations  of 
the  Rev.  Dr.  Whitaker  and  the  Rev.  Mr.  Sampson  Occom  whom  I 
sent  into  Europe  for  that  purpose ;  that  in  consequence  thereof 
many  subscriptions  of  landed  and  other  interests  were  generously 
made  in  the  several  governments  of  New  England  and  parts  adja- 
cent to  invite  the  settlement  of  it  with  them  respectively. 

The  decision  of  which  being  referred  to  the  right  Honorable 
and  Worthy  Trustees  in  London  who  gave  the  preference  to  the 
place  where  it  is  now  settled.  Tlie  royal  favor  of  a  charter  was 
hereupon  granted  at  the  desire  of  your  Memorialist,  amply 
endoicing  it  tvith  jurisdictions  powers  immunities  and  privileges 
equal  to  any  University  tvithin  the  Realm  of  Gh'eat  Britain,  and 
whereby  it  became  a  body  corporate  and  politic  as  independent  as 
any  corporation  —  or  any  other  incorporate  body  whatsoever  is  or 
can  be ;  that  since  the  commencement  of  the  present  War  all 
resources  for  its  support  from  beyond  the  Seas  have  been  wholly 
cut  off  and  suspended,  whereby  it  has  been  exposed  to  great  ne- 
cessities and  to  require  a  charitable  patronage  and  assistance  from 
some  one  or  other  of  the  United  States  in  America.  And  as  it  is 
by  the  Providence  of  God  located  in  your  vicinity  and  I  have 
with  pleasure  observed  in  your  well  formed  constitution  the 
expressions  of  your  pious  care  early  to  lay  a  foundation  to  pro- 
mote Religion,  Learning  and  Virtue  in  your  State,  and  particu- 
larly to  erect  a  University  in  the  same  for  the  encouragement  of 
those  pious  purposes,  I  am  encouraged  to  make  this  proposal  to 


62  DARTMOUTH  COLLEGE  CAUSES. 

you  and  desire  you  to  take  it  into  consideration  whether  you  will 
or  not  take  this  School  under  your  friendly  and  charitable  patron- 
age and  assist  and  vindicate  the  rights,  jurisdictions,  immunities, 
powers  and  privileges  which  it  is  entitled  to  by  royal  Charter  and 
which  has  since  been  ratified  and  confirmed  by  the  Honorable 
Continental  Congress  and  particularly  that  till  it  shall  be  in  a 
capacity  to  appoint  such  Officers  and  Orders  as  it  is  by  Charter 
entitled  to  for  the  safety  edification  and  well-being  of  the  same 
that  you  would  enact  that  the  President  for  the  time  being  shall 
be  a  justice  of  the  peace  he  being  duly  qualified  therefor,  and  that 
the  Corporation  of  said  College  shall  have  right  to  appoint  another 
to  that  Office  to  be  an  assistant  and  officiate  with  him  therein,  and 
this  more  especially  for  the  trial  of  causes  which  concern  the  /School 
or  University,  that  they  shall  have  right  as  occasion  shall  require 
to  call  in  a  Magistrate  or  Magistrates  a  Justice  or  Justices  of  the 
peace  of  the  vicinity  in  your  State  to  assist  as  there  shall  appear 
occasion  in  the  trial  of  such  causes  as  may  be  before  them  and 
that  the  Officers  of  your  State  shall  be  under  the  same  obligation 
to  obey  the  precepts  issued  forth  by  the  aforesaid  authority, 
that  they  are  to  obey  any  other  Officer  or  Judicatory  whatsoever ; 
that  appeals  from  this  court  shall  be  to  the  superior  court  of  your 
State ;  that  all  trycds  and  determinations  icherein  those  are  con- 
cerned who  do  not  belong  to  or  are  not  connected  tvith  this  School 
or  University  and  all  processes  respecting  such  shall  he  according  to 
the  Laivs  of  your  State.  And  moreover,  that  j'ou  grant  unto  this 
University,  that  there  be  two  or  three  Charity-Schools  or  Acade- 
mies besides  the  present  erected  upon  the  same  plan  and  under  the 
same  jurisdiction  and  for  the  same  pious  purposes  as  the  present 
in  connexion  with  this  University  is,  and  they  to  be  fixed  in  such 
places  as  your  State  shall  judge  most  convenient ;  that  the  respec- 
tive schools  shall  be  endowed  with  landed  and  other  interests  as 
the  charity  and  pious  disposition  of  j'our  State  or  any  individual 
thereof  shall  induce  them  to  liberality  towards  the  same.  — That 
this  corporation  shall  have  liberty  as  they  see  occasion,  due 
respect  being  had  to  the  friendship  and  liberality  shown  to 
them  respectively  by  the  inhabitants  in  the  vicinity,  to  give  the 
preference  to  either  of  them  as  the  place  for  the  Annual  Com- 
mencement to  confer  the  honors  of  said  University,  or  to  erect  a 
principle  building  to  accommodate  the  students  belonging  to  the 
same  ;  that  those  glebes  of  land  which  were  granted  in  the  respec- 


avheelock's  iviemorial.  G3 

tive  Townships  to  the  Society  in  Land  as  for  the  propagating  of 
the  Gospel  in  foreign  parts  shall,  or  such  part  of  them  as  you 
shall  judge  fit,  be  granted  and  sequestered  to  the  only  benefit  use 
behoof  and  support  of  said  Schools  or  of  the  University  to  which 
they  shall  be  subordinate  and  this  as  being  most  agreeable  to  the 
original  charitable  and  pious  purpose  and  design  of  the  same,  and 
I  submit  to  your  consideration  tvhether  you  ivill  not  esteem  a  grant 
to  this  University  of  the  Township  of  Kingsland  which  was  once 
granted  for  the  encouragement  and  building  up  of  an  Episcopal 
College  in  New  York  to  be  a  reasonable  and  acceptable  return 
and  offering  to  the  Lord  Jesus  Christ  for  the  signal  tokens  of  the 
divine  favor  hitherto  manifested  to  your  State ;  and  as  to  what  I 
have  said  respecting  your  charitable  endowment  of  this  Institution 
it  is  wholly  submitted  to  your  wise  and  prudent  determination. 
And  OS  to  ivhat  concerns  the  poivers,  jurisdictions  and  immunities  of 
the  same  here  expressed  they  do  not  exceed  those  which  were  granted 
by  the  roycd  charter.  And  your  own  thoughts  will  suggest  whether 
they  are  more  than  are  necessary  for  the  safety  and  well-being  of 
an  Institution  of  such  a  nature  and  so  liberally  endowed  with  an 
invaluable  treasure  to  be  defended  and  secured  or  more  than  will 
best  subserve  the  honor  and  reputation  of  your  State  and  render 
it  respectable  in  the  account  of  the  present  and  of  generations 
yet  to  come. 

Respected  Gentlemen,  with  my  best  wishes  and  ardent  prayers 
that  you  may  enjoy  peace,  unanimity  and  divine  guidance  and 
direction  in  all  your  consultations  and  determinations  in  the  im- 
portant matters  that  are  before  you  and  that  the  word  of  God  in 
due  time  may  have  free  course,  run  and  be  glorified  and  the 
Redeemer's  Kingdom  be  built  up  and  glory  dwell  in  your  state, 

I  subscribe  with  much  affection  and  esteem  your  Honorable 

Assembly's  most  obedient  and  most  humble  servant, 

Eleazar  "Wheelock. 
Dartmo.  College,  4  June,  1778." 

"We  have  italicised  some  of  the  more  important  passages. 
The  following  extracts  from  its  journals  show  to  some 
extent  the  actions  of  the  Continental  Congress  :  — 

July  12,  1775. 
That  as  there  is  a  Seminary  for  the  instruction  of  Indian  youth 
which  has  been  established  under  the  care  of  Dr.  Wheelock,  on 


64  DARTMOUTH  COLLEGE  CAUSES. 

Connecticut  River,  and  as  there  are  nine  or  ten  Indian  youths  at 
that  school,  chiefly  from  the  tribes  residing  near  Quebec ;  and  as 
for  want  of  a  proper  fund,  there  is  danger  that  these  youths  may 
be  sent  back  to  their  friends,  which  will  probably  excite  jealousy 
and  distrust,  and  be  attended  with  bad  consequences,  the  Commis- 
sioners for  Indian  Affairs  in  the  Northern  Department  be  authorized 
to  receive,  out  of  the  Continental  Treasury,  a  sum  not  exceeding 
Five  Hundred  Dollars,  to  be  applied  by  them  for  the  support  of 
said  Indian  youths.     ( 1  Jour,  of  Cont.  Cong.  163. ) 

jAir.  10,  1776. 
Resolved,  That  the  Commissioners  for  Indian  Affairs  in  the 
Northern   Dept.  be   directed   to   pay  Rev.  Dr.  Wheeloek   $500, 
agreeable  to  a  resolution  of  Congress  passed  the  12th  day  of  July 
last.     (2  Jour,  of  Cont.  Cong.  18.) 

April  10,  1776. 

Resolved,  That  although  the  prosperity  of  Dartmouth  College, 
in  the  colony  of  New  Hampshire,  is  a  desirable  object,  it  is  neither 
reasonable  nor  prudent  to  contribute  towards  its  relief  or  support, 
out  of  the  public  Treasury.     (2  Jour,  of  Cont.  Cong.  126.) 

Sept.  19,  1776. 

As  it  may  be  a  means  of  conciliating  the  friendship  of  the 
Canadian  Indians,  or  at  least  of  preventing  hostilities  by  them,  in 
some  measure,  to  assist  the  President  of  Dartmouth  College  in 
New  Hampshire,  in  maintaining  their  youth,  who  are  now  there 
under  his  tuition,  and  whom  the  revenues  of  the  College  are  not, 
at  this  time,  sufficient  to  support ;  that  for  this  purpose  $500  be 
paid  to  the  Rev.  Dr.  Eleazer  Wheeloek,  President  of  the  said  Col- 
lege.    (2  Jour,  of  Cont.  Cong.  365.) 

Friday,  18  December,  1778. 

A  report  from  the  Board  of  Treasury  was  read.  Whereupon 
Congress  came  to  the  following  order  and  resolution :  — 

Whereas  Dr.  Wheeloek  has  incurred  expense  in  supporting  a 
number  of  Indian  Youth  of  the  Caghnawaga  tribe  at  his  school 
which  in  times  past  has  been  the  means  of  conciliating  the  friend- 
ship of  that  tribe  :  — 

Ordered  that  a  warrant  issue  on  the  Treasurer  in  favor  of 
Lieutenant  Colonel  Wheeloek  for  nine  hundred  and  twenty-five 
dollars  for  the  use  of  the  said  Doctor  Eleazer  Wheeloek. 


COXTINENTAL    CONGRESS COLLEGE    DISTRICT.  65 

"When  the  Indian  school  and  College  were  established  in 
the  wilderness  at  Hanover,  Wheelock's  religious  and  per- 
sonal friends  from  Connecticut  swarmed  up  the  valley  and 
located  above  and  below  him  on  both  sides  of  the  river. 
Fifty-two  people  from  Connecticut  settled  Hanover,  and 
eight  hundred  families  from  Connecticut  gathered  in  a  few 
towns  on  the  New  Hampshire  side  alone.  In  a  word,  he 
founded  on  the  extreme  western  border  of  New  Hampshire, 
separated  from  the  rest  of  that  State  by  a  vast  wilderness,  a 
Connecticut  colony  which  had  but  a  mystical  legal  connec- 
tion with  it.  The  better  to  conserve  his  power,  a  district 
three  miles  square,  called  Dresden,  was  created,  to  be  under 
the  immediate  jurisdiction  of  Dartmouth  College,  and 
special  jurisdiction  over  this  little  empire  was  given  to  Presi- 
dent Wheelock  as  its  magistrate.  Aside  from  Wheelock, 
the  College  faculty  were  at  the  bottom  of  the  secession  of 
the  sixteen  river  towns  from  New  Hampshire,  and  the  move- 
ment to  establish  a  new  confederacy,  with  the  College  district 
as  its  capital.  The  church,  school,  and  College  were  under 
the  personal,  or,  as  he  termed  it,  the  "  paternal,"  govern- 
ment of  the  president  till  his  death,  in  1779,  when  they 
descended  as  an  heirloom  to  his  son  John  Wheelock,  who 
was  called  from  the  army,  and  became  by  force  of  his 
father's  will  his  dynastic  successor.  He  retained  his  office 
until  he  was  removed  by  the  trustees  in  1815,  after  a  service 
of  thirty-six  years. 

The  second  Wheelock  had  had  the  benefit  of  foreig:n 
travel ;  gathered  contributions  for  the  College  in  all  coun- 
tries ;  was  rich,  courtly,  and  strong-willed ;  had  given  his 
services,  and  oftentimes  his  money,  to  the  College,  and  had 
proposed  to  give  more,  and  make  it,  in  effect,  his  heir. 


CHAPTER    III. 

THE  KELIGIOUS  PHASE  OF  THE  CONTROVERSY  — DIFFER- 
ENCES BETWEEN  DR.  WHEELOCK  AND  DR.  BELLAMY  — 
CHURCH  TROUBLES  AT  HANOVER  — THE  FAMILY  DY- 
NASTY—CORRESPONDENCE—THE STANDING  ORDER  — THE 
CLERGY  EXEMPTED  FROM  TAXATION  —  LIBERAL  VIEWS 
AND  POLICY  OF  GOVERNOR  PLUMER— DR.  WHIPPLE'S  TOL- 
ERATION ACT. 

A  FUNDAMENTAL  provisioii  of  the  College  charter  was  that 
there  should  be  no  discrimination  on  account  of  religious 
faith  or  principles. 

The  population  of  the  province,  at  this  time,  was  about 
sixty  thousand,  and  probably  a  majority  of  them  were  ortho- 
dox of  the  Plymouth  Rock  school ;  but  Episcopalians  were 
quite  abundant  on  the  sea-coast,  and  many  of  the  prominent 
men  of  the  province,  including  the  governor  who  granted  the 
charter,  affiliated  with  that  church.  Presbyterian  churches 
were  scattered  along  the  valley  of  the  Merrimack.  Whee- 
lock  had  great  popularity,  and,  in  his  later  years  at  least, 
was  a  Presbyterian,  and  gathered  about  him  churches  of 
that  order. 

There  were  natural  and  substantial  reasons  for  Wheelock's 
course.  His  lot  was  early  cast  in  what  was  essentially  a 
Scotch  settlement,  to  whom  the  faith  and  forms  of  their 
fathers  came  by  inheritance.  From  first  to  last,  the  Presby- 
terian Church  cordially  sustained  him,  and  contributed  with 
marked  liberality  to  forward  the  great  enterprise  which  was 
nearest  his  heart.  The  royal  governors  of  New  Hampshire, 
though  strongly  attached  to  the  Church  of  England,  favored 
the  Presbyterian  Church  over  the  Congregationalist.  Ex- 
ceedingly strict  in  morals  and  decided  in  matters  of  faith, 

(r.6)  ^' 


wheelock's  course  —  haze's  case.  67 

he  was  tolerant  far  beyond  his  time  of  those  who  differed 
from  him  in  opinion,  as  long  as  he  felt  that  they  were  sin- 
cere and  led  pure  lives.  Unworthy  persons  had  been 
brought  within  the  fold  through  the  half-way  covenant,  and 
otherwise  ;  and  he  felt  that  such  would  be  less  likely  to 
vote  themselves  and  their  fellows  out  of  its  pale  than  a  more 
conservative  body  like  the  sessions. 

Difficulties  arose  in  the  church  at  Hanover. 

There  was  "  a  woman  in  the  case."  We  quote  the  fol- 
lowing :  — 

To  y^  Session  of  y^  Church  of  Christ  in  Hanover. 

Rev'd  and  Beloved.  Y®  subscriber  being  aggrieved  with  Sam'l 
Haze,  [Hayes]  a  member  of  said  Church,  for  his  browbeating 
and  insulting  me  when  attempting  to  admonish  him  for  forbid- 
ding his  family  to  come  to  my  house  unless  of  an  arrand ;  in 
telling  me  I  was  doing  all  in  my  power  to  undo  his  family,  and 
that  I  had  been  trying  to  do  it  this  number  of  years  ;  also  for  tell- 
ing me  I  was  meddling  y*^  most  of  my  time  with  that  I  had  no 
business  with,  and  that  my  character  was,  as  a  certain  man  told 
me,  as  black  as  Hell,  he  told  me  I  knew  where  ;  also  he  told  me  I 
had  almost  broke  up  one  school  by  my  conduct ;  also  for  telling 
me  when  put  in  mind  of  our  neighbor's  settlement,  that  he  had 
never  settled  anything  with  me  ;  also  by  way  of  irony,  he  told  me 
if  I  proceeded  against  him,  he  supposed  I  would  get  Mr.  Rudd  to 
enter  y*'  complaint ;  also  he  told  me  my  dealing  with  him  was  pub- 
lick  ;  and  being  asked  how  that  came  to  be,  told  me  that  he  had 
made  it  so ;  also  that  my  conduct  was  erroneous,  and  far  worse 
than  Mr.  Bassetts  ;  which  conduct  of  Said  Haze  I  apprehend  to  be 
a  breach  of  y'^  ninth  command,  and  also  a  violation  of  his  cove- 
nant engagement ;  and  having  taken  y^  more  private  steps,  and 
being  unable  to  recover  y''  brother  from  his  error,  I,  in  this  way, 
tell  it  to  y*^  Church,  that  he  may  be  dealt  with  as  God,  in  his  word 
requires. 

Rachel  Murch. 
Hanover,  April  26,  1783. 

Mr.  Haze  was  tried,  convicted,  and  censured  by  the  ses- 
sions.    He  appealed  to  the  Grafton  Presbytery,  which  then 


68  DARTMOUTH  COLLEGE  CAUSES. 

embraced  most  of  the  churches  in  that  region,  and  which, 
in  effect,  held  him  guilty,  but  not  censurable.  The  sessions, 
led  by  the  pastor,  Rev.  Dr.  Burroughs,  remonstrated,  and 
arraigned  the  presbytery  for  its  decision.  The  latter  vacil- 
lated, but  finally  cited  the  sessions,  which  refused  to  obey 
until  the  obnoxious  decision  was  annulled.  In  March,  1784, 
the  sessions,  and  such  of  the  church  as  adhered  to  them, — 
fifty-six  persons  in  all,  — separated  from  the  presbytery, 
which,  in  May,  1784,  cited  them  to  appear  at  Orford  to 
show  cause  why  they  should  not  be  dealt  with  as  rebels  and 
covenant-breakers.  On  June  4,  1784,  this  summons  was 
formally  defied  by  the  sessions.  Four  days  later,  the  presby- 
tery decided  that  Dr.  Burroughs  and  his  followers,  in  sep- 
arating  themselves  from  the  church  and  presbytery,  were 
covenant-breakers,  and  cut  them  oflT  from  fellowship  with 
the  churches  connected  with  that  presbytery  ;  but,  as  there 
was  no  synod,  proposed  a  mutual  council.  The  sessions 
promptly  rejected  the  proposition,  and  the  church  confirmed 
their  action.  The  other  church  at  Hanover,  Wheelock,  the 
professors,  and  some  of  the  trustees,  were  involved  in  the 
controversy  until  Dr.  Burroughs  was  dismissed,  in  1809, 
when  there  was  a  change  of  form  in  these  church  troubles. 

From  the  outset,  the  pivot  question  was  one  of  discipline, 
and  into  that  the  one  of  church  government  entered. 

The  mass  of  details,  into  which  we  cannot  enter,  have 
been  gathered  with  praiseworthy  industry  by  the  Rev. 
Charles  A.  Downs,  superintendent  of  public  instruction  in 
New  Hampshire,  and  former  pastor  of  the  Congregational- 
ist  church  at  Lebanon,  which  is  about  five  miles  from  the 
College. 

In  the  Board  of  Trustees,  Dr.  John  Wheelock  led  the  Pres- 
bjrterian  wing,  and  Dr.  Shurtleff,  apparently,  but  Judge 
Niles  really,  led  the  other. 

Judge  Niles  was  a  favorite  student  of  and  read  theology 
with  Dr.  Joseph  Bellamy,  of  Connecticut,  who  graduated  at 
Yale  in  1735,  two  years  after  the  elder  Wheelock. 


WHEELOCK NILES THE    TRUSTEES.  6t) 

Bellamy  was  a  pungent  controversialist,  and  there  was  a 
radical  dift'erence  between  him  and  Dr.  Wheelock  about 
church  polity,  etc. 

Dr.  Wheelock  claimed  that  the  Presbyterian,  and  Dr. 
ShurtlefF  that  the  Congregational,  form  of  church  govern- 
ment should  prevail.  The  former  was  a  government  by  the 
eldership,  and  the  latter  by  major  vote  of  the  body  of  the 
church,  — a  pure  democracy. 

Many  of  those  who  are  best  informed  believe  that  the  sub- 
sequent troubles  and  the  famous  litigation  arose  in  fact,  as 
well  as  in  form,  from  this  apparent  difference  of  opinion 
about  church  government.  The  eight  trustees  who  removed 
Dr.  Wheelock  were  manifestly  of  the  opposite  opinion. 
They  say  :  ' '  The  trustees  now  solemnly  declare  that  they 
do  not  feel,  and  never  have  felt,  any  hostility  toward  the 
Presbyterian  form  of  church  government,  or  toward  the 
church  of  which  the  president  is  a  member  ;  nor  any  wish  to 
give  the  new  church  any  advantage  over  the  old,  or  in  any 
way  to  interfere  with  their  unhappy  controversy.  *  *  * 
They  do,  however,  believe  that  the  seeming  attachment  of 
the  president  to  this  particular  form  of  church  government 
is  mere  pretence." 

We  think  this  difference  was  only  the  name  of  the  case,  — 
the  John  Doe  and  Richard  Eoe  of  the  ejectment ;  or,  as 
Judge  Crosby  emphatically  puts  it,  "  The  second  Wheelock 
lost  his  presidency  by  removal.  True,  perhaps  too  true. 
It  was  not  caused  by  incompetency,  nor  by  neglect  of  duty, 
nor  change  of  religious  opinion,  but  simply  to  rid  the  board 
and  College  of  the  family  dynasty." 

Mr.  Adams  was  a  professor  in  the  College  under  Dr. 
Wheelock.  He  was  the  special,  intimate,  and  confidential 
correspondent  of  Thomas  W.  Thompson,  one  of  the  hostile 
trustees,  and  one  of  the  most  active  and  efficient  manao-ers 
on  the  anti-Wheelock  side.  On  September  10,  1814,  he 
wrote  a  lengthy  letter  to  the  elder  Farrar,  another  trustee, 
in  relation  to  politics  and  the  affairs  of  the  College.     In  it 


70  DARTMOUTH  COLLEGE  CAUSES. 

he  says  :  "I  have  heard  it  suggested  that  a  project  is  on 
foot  to  have  the  president  resign,  the  trustees  first  pledging 
themselves  to  appoint  Mr.  Allen.  This  is  indeed  a  project 
I  have  expected,  but  did  not  look  for  it  quite  so  soon.  I 
trust,  however,  that  the  trustees  are  not  yet  prepared  to 
give  a  warranty  of  the  college  to  the  family  dynasty.  I 
hope  also  that  they  do  not  think  they  have  such  a  set  of 
turbulent,  refractory  professors  that  it  is  necessary  to  place 
over  them  a  democratic  president  to  punish  them  for  their 
iniquities." 

Ever  since  the  Kevolution,  and  indeed  before,  the  Con- 
gregationalist,  the  "  standing  order,"  asit  was  often  termed, 
had  been  the  dominant  religious  sect.  It  had  become  a  spe- 
cies of  "  State  religion."  Its  ministers  were  nearly  all  Fed- 
eralists, and  its  laymen  largely  so.  But  a  few  years  before 
this  explosion,  a  representative  man  asserted,  in  a  public 
address,  that  there  were  in  the  denomination,  in  the  State, 
but  two  clergymen  who  were  Anti-Federalists,  and  as  pub- 
licly urged  that  they  should  be  ' '  cast  out ' '  for  their  irre- 
ligion  in  politics. 

Taxation  in  those  days  was  a  grievous  burden,  and  no  part 
of  it  was  borne  by  the  clergy.  By  a  law  passed  in  1705  it 
was  made  the  duty  of  the  freeholder  who  took  the  account  for 
the  purposes  of  assessment  to  faithfully  perform  ' '  the  trust," 
"  in  going  through  the  town,"  "  to  every  inhabitant  thereof, 
to  take  a  just  and  true  account  of  each  person's  ratable 
estate."  By  the  act  of  May,  1719,  it  was  made  the  duty  of 
the  selectmen,  in  making  their  assessments,  "to  make  perfect 
lists  under  their  hands,  or  the  major  part  of  them,  setting 
down  every  person's  name  and  several  proportion."  By  an 
act  of  12  Geo.  II.  it  was  provided  "that  the  selectmen 
and  assessors  of  said  towns,  parishes,  and  precincts  are 
hereby  authorized  and  enabled  to  assess  the  polls  and  estates 
of  the  inhabitants  within  their  respective  districts,  each  one 
according  to  his  known  ability,  their  proportion  of  all 
province,  charge  and  taxes  yearly,  upon  the  receipt  of  the 


CLERGY    EXEMPTED    FROM   TAXATION.  71 

treasurer's  warrant,  to  be  directed  to  the  selectmen  as  has 
been  usual."  Those  acts  did  not  exempt  clergymen,  or  pro- 
vide that  they  should  not  be  deemed  "persons."  There 
were  other  acts  in  a  similar  vein. 

In  Kelley  v.  Bean  and  others,  selectmen  of  Warner,  the 
highest  court  in  the  State,  at  the  May  term,  1798,  in  Hills- 
borough County,  decided  "  that  a  minister  of  the  church 
and  congregation  in  a  town ' '  was  not  liable  to  be  taxed. 

In  Kidder  v.  French,  decided  by  the  same  court,  in  the 
same  county,  at  the  April  term,  1807,  it  was  held  by  a 
majority  of  the  court  that  the  estate  of  an  ordained  minister 
of  the  gospel  who  is  not  settled  over  a  corporate  society  was 
not  exempt  from  taxation.  From  this  decision  Wingate,  J., 
dissented.  Chief  Justice  Smith  was  a  liberal  in  his  religfious 
views  and  opinions.  We  undoubtedly  owe  to  that  fact,  and 
his  influence  with  his  associate,  that  they  were  not  exempted 
from  taxation  under  all  circumstances.  The  plaintiff,  Kid- 
der, failed  because  the  pastoral  relations  between  himself 
' '  and  the  church  and  town  of  Dunstable  ' '  had  been  dis- 
solved prior  to  the  assessment  of  the  tax.  (Smith's  N.  H. 
Rep.  155.) 

In  Moore  v.  Poole,  decided  by  the  Supreme  Court,  in  the 
same  county,  in  December,  1815,  upon  a  demurrer  to  the 
declaration,  the  general  doctrine  of  Kelley  v.  Bean  was 
affirmed.  The  demurrer  was  overruled,  and  the  plaintiff 
had  judgment  for  $7.08.  The  court  held  that  when  an 
assistant  assessor  of  the  United  States  direct  tax  enumerated 
in  the  list  of  taxable  property  the  real  estate  of  a  settled 
minister,  and  a  tax  was  afterwards  assessed  upon  this  list  by 
the  principal  assessor,  and  was  collected,  the  minister's 
land  was  exempt,  and  that  he  could  maintain  case  against 
the  assistant  assessor.  The  opinion  was  delivered  by  the 
chief  justice,  and  these  cases  are  to  be  found  in  his  MS. 
reports. 

There  were  other  cases  to  the  same  import.  All  other 
denominations  had  to  support,  not  only  their  own  church 


72  DAETMOUTH  COLLEGE  CAUSES. 

organizations,  but,  through  the  "  contract  "  system  and  the 
tax  power,  were  also  compelled  to  contribute  to  the  support 
of  this  denomination  as  if  they  were  members  of  it.  By  the 
act  of  May,  1714,  it  was  provided  that  every  town,  in  town- 
meeting,  might  by  themselves,  or  by  any  other  person 
appointed,  "agree  with  a  minister  or  ministers  for  the 
supply  of  such  town,  and  what  annual  salary  shall  be 
allowed  him  or  them  ;  and  the  minister  or  ministers  so  made 
choice  of  and  agreed  with  shall  be  accounted  the  settled 
minister  or  ministers  of  such  town  ;  and  the  selectmen,  for 
the  time  being,  shall  make  rates  and  assessments  upon  the 
inhabitants  of  the  town  for  the  payment  of  the  minister's 
salary,  as  aforesaid,  in  such  manner  and  form  as  they  do  for 
defraying  of  other  town  charges.  *  *  *  Provided^ 
always^  That  this  act  do  not  at  all  interfere  with  her 
majesty's  grace  and  favor  in  allowing  her  subjects  liberty  of 
conscience  ;  nor  shall  any  person,  under  pretence  of  being 
of  a  different  perswasion,  be  excused  from  paying  toward  the 
support  of  the  settled  minister  or  ministers  of  such  town, 
aforesaid  ;  but  only  such  as  are  conscientiously  so,  and  con- 
stantly attend  the  publick  worship  of  God  on  the  Lord's  day 
according  to  their  own  perswasion,  and  they  only  shall  be 
excused  from  paying  towards  the  support  of  the  ministry  of 
the  town." 

"Sec.  2.  And  it  is  hereby  further  enacted  and  ordained,  That 
for  building  and  repairing  of  meeting-houses,  ministers'  houses, 
school- houses,  and  allowing  a  salary  to  a  school-master,  of  each 
town  within  this  province,  the  selectmen,  in  their  respective  towns, 
shall  raise  money  by  an  equal  rate  and  assessment  upon  the  inhab- 
itants, in  the  same  manner  as  in  this  present  act  dire^^ted  for  the 
maintenance  of  the  minister." 

The  act  of  February  8,  1791,  provided  "  that  the  inhabi- 
tants of  each  town  in  this  State,  qualihed  to  vote  as  afore- 
said, at  any  meeting  duly  and  legally  warned  and  holden  in 
such  town,  may,  agreeably  to  the  Constitution,  grant  and 
vote  such  sum  or  sums  of  money  as  they  shall  judge  neces- 


ONE    SECT    TAXES    THE    PEOPLE.  to 

sary  for  the  settlement,  maintenance,  and  support  of  the 
ministry,  schools,  meeting-houses,  school-houses,  the  main- 
tenance of  the  poor,  for  laying  out  and  repairing  highways, 
for  building  and  repairing  bridges,  and  for  all  the  necessary 
charges  arising  within  the  said  town,  to  be  assessed  on  the 
polls  and  estates  in  the  same  town,  as  the  law  directs." 

The  same  statute  declared  parishes  with  town  privileges 
towns. 

The  law  of  1791  was,  in  practice,  treated  as  a  reaffirmance 
of  the  prior  law.  Under  these  laws,  "  the  Congregational 
clergy  in  the  State  had  been  originally  settled  by  the  towns 
or  parishes  where  they  preached,  and  the  inhabitants  were 
all  taxed  for  their  support.  But  many  individuals  of  their 
congregations,  having  now  become  Baptists,  Methodists,  or 
Universalists,  were  no  longer  willing  to  jjay  for  preaching 
they  did  not  attend.  Property  had  been  taken,  in  many 
cases,  on  distraint,  for  taxes  so  assessed,  and  suits  were 
commenced  to  ascertain  the  rights  of  the  parties."  (Life  of 
Governor  Plumer,  185.) 

The  Constitutions  of  1784  and  1792,  with  the  exception 
of  the  disgraceful  provisions  (always  a  dead  letter)  which 
prohibited  Catholics  from  holding  a  few  political  offices, 
put  all  religious  denominations  upon  the  same  level. 

They  provided,  — 

"  That  the  several  towns,  parishes,  bodies  corporate,  or  religious 
societies  shall  at  all  times  have  the  exclusive  right  of  electing  their 
own  pubhc  teachers,  and  of  contracting  with  them  for  their  sup- 
port and  maintenance  ;  and  no  person  of  any  one  particular  religious 
sect  or  denomination  shall  ever  be  compelled  to  pay  toward  the 
support  of  the  teacher  or  teachers  of  another  persuasion,  sect  or 
denomination. 

"  And  every  denomination  of  Christians,  demeaning  themselves 
quietly  and  as  good  subjects  of  the  State,  shall  be  equally 
under  the  protection  of  the  law  ;  and  no  subordination  of  any  one 
sect  or  denomination  to  another  shall  ever  be  established  by 
law. 

"And  nothing  herein  shall  be  understood  to  affect  an}'  former 


74  DARTMOUTH  COLLEGE  CAUSES. 

contracts  made  for  the  support  of  the  ministry,  but  all  such  con- 
tracts shall  remain  and  be  in  the  same  state  as  if  this  Constitution 
had  not  been  made." 

These  provisions  wrought  no  essential  change  in  these 
settlements  or  the  form  of  the  contracts.  As  late  as  1806, 
one  of  the  most  important  towns  in  the  State  "  settled  "  a 
clergyman,  eminent  for  his  scholarship,  over  the  parish 
where  the  writer  dwelt  in  his  boyhood,  under  a  "  contract  " 

vote  *'  that  the  town  of pay $450  annually,  for 

preaching  and  attending  to  all  the  duties  incumbent  on  a 
settled  minister  of  the  gospel  in  said  town,  until  two-thirds 
of  that  part  of  the  town  denominated  Congregationalists 
shall  wish  to  discontinue  the  salary  ;  and  it  shall  be  discon- 
tinued in  one  year  after  a  regular  notification,  in  writing, 

from  the  town  to  said ,  purporting  such  wish."     He 

retained  this  charge  for  about  forty-six  years.  This  instance 
well  illustrates  the  whole  system  in  its  best  estate.  Except 
for  such  purposes  of  taxation,  the  existence  of  those  who 
were  not  Congregationalists  was  practically  ignored.  Those 
who  would  not  pay  such  taxes  were  harassed  with  suits. 
Their  difficulty  was  to  satisfy  courts  and  juries  that  they 
were  not  making  ' '  pretence  of  being  of  a  different  persua- 
sion," etc.  The  astute  counsel  for  the  settled  ministers 
dragged  into  all  these  jury  trials  every  conceivable  ecclesias- 
tical dogma  and  theological  vagary,  and  the  most  subtle  dis- 
tinctions between  baptism,  immersion,  etc.,  their  point  being 
to  induce  the  juries  to  hold  that,  for  the  purposes  of  church 
taxation,  everybody  was  a  Congregationalist,  though  he 
might  not  be  for  any  other  purjiose.  "  In  one  such  case, 
where  the  party  resisting  the  tax  was  a  Universalist,  the 
decision  was  against  him.  Judge  Wingate  charged  the  jury 
that  if  the  party  claiming  the  exemption  did  not  prove  him- 
self, in  the  words  of  the  Constitution,  to  belong  to  '  another 
persuasion,  sect  or  denomination,'  he  was  bound  to  pay  his 
tax  for  the  support  of  the  minister  of  the  town  ;  and  that, 
to  make  him  such,  the  difference  must  be  something  more 


JUDICIAL    INJUSTICE.  75 

than  that  which  separated  Calvinists  from  Universalists  ;  in 
other  words,  that  a  person  who  believed  in  universal  salva- 
tion might,  in  the  eye  of  the  law,  be  of  the  same  persuasion 
with  another  who  believed  that  not  one  in  ten  would  be 
saved.  They  agreed,  said  the  judge,  in  more  points  than 
they  diflfered  in.  They  were  both  Christians  ;  and  the  infer- 
ence, somewhat  harshly  drawn,  was  that  they  were  both 
bound  to  support  the  same  preacher."  (Life  of  Plumer, 
186.) 

Wingate  was  a  clergyman,  and  one  of  the  judges  of 
the  highest  court,  whose  judicial  life  terminated  in  1809. 
Judge  Farrar,  one  of  the  trustees,  though  more  discreet 
in  their  expression,  shared  and  enforced  the  same  general 
views  of  Wingate.  He  was  a  judge  of  the  same  court 
for  about  thirteen  years,  ending  in  1803,  and  chief  jus- 
tice of  the  Common  Pleas  for  more  than  three  years,  ending 
in  June,  1816. 

With  such  judges,  and  juries  who  were  not  likely  to  agree 
against  a  church  of  which,  in  general,  a  majority  of  them 
were  members,  or  in  sympathy,  the  people  were  compelled 
to  pay  "tithes"  to  the  dominant  sect,  or  to  be  ruined  by 
litigation. 

Acts  of  incorporation  in  the  interests  of  the  "  standing 
order"  were  granted,  but  similar  acts  in  the  interests  of 
other  denominations  were  denied. 

When  the  College  quarrel  opened  the  breach,  the  other 
denominations  took  courage  and  massed  tosrether  to  wrino; 
the  legislation  which  followed  —  the  College  Acts,  the  laws 
equalizing  taxation,  and  "  the  Eeligious  Toleration  Acts"  — 
from  the  "  standing  order,"  which  they  succeeded  in  doing 
in  less  than  seven  years. 

The  College  was  located  on  the  border.  The  district  was 
the  birthplace  of  secession ;  prior  to  the  Federal  Constitu- 
tion, the  Confederacy  had  denied  and  defied  the  jurisdiction 
of  New  Hampshire  ;  the  liberals  in  politics  and  religion  had 
long  regarded  the  institution  as  exclusive,  aristocratic,  and 


76  DARTMOUTH  COLLEGE  CAUSES. 

the  stronghold  of  Federalism  and  the  "  standing  order,"  and 
the  leading  Federalists  and  their  organs  had  given  Wheelock 
the  cold  shoulder.  The  politicians  were  not  slow  to  see  the 
drift,  and  took  the  rising  tide. 

Mason,  the  most  sagacious  of  men,  saw  the  gathering  of 
the  elements,  and  in  the  circles  where  he  moved,  as  in  his 
letter  to  his  cousin  Marsh,  of  August  15,  1815,  warned  them 
of  the  consequences  ;  but  the  warning  passed  unheeded,  and 
the  deluge  came. 

The  Anti-Federalists  put  William  Plumer,  Jr.,  "the 
Eppino*  wizard,"  as  he  was  termed  by  some  of  his  oppo- 
nents, who  had  been  governor  in  1812,  again  in  the  field. 

In  1849,  Webster,  in  a  public  address,  said  of  his  old 
opponent :  ' '  Governor  Plumer  is  a  man  of  learning  and  of 
talent.  He  has  performed  important  service  in  the  Congress 
of  the  United  States.  He  has  been  many  years  governor 
of  the  state  of  New  Hampshire.  He  has  lived  a  life  of  study 
and  attainment,  and,  I  suppose,  is,  among  the  men  now 
living,  one  of  the  best  informed  in  matters  pertaining  to  the 
history  of  his  country.  He  is  now  more  than  ninety  years 
of  age."     (Life  of  Plumer,  518,  519.) 

Plumer  was  a  strong  man  and  an  eminent  lawyer.  When 
a  mere  child  he  was  a  Baptist  preacher,  whose  powers  of 
reasoning  astonished  even  the  veterans  of  his  day.  After- 
wards he  relapsed  into  the  liberalism  of  Jeiferson,  and  took 
to  the  law. 

In  the  House,  in  1791,  Welman,  an  ex-preacher,  moved 
that  any  person  "  convicted  of  speaking  disrespectfully  of 
any  part  of  the  Bible  should  have  his  tongue  bored  through 
with  a  hot  iron."  (Life  of  Plumer,  112,  113.)  Plumer, 
by  great  exertions,  succeeded  in  defeating  its  passage  by  a 
small  majority.  In  the  same  year,  he  was  a  member  of  the 
convention  which  formed  the  Constitution  of  1792.  That 
Constitution,  which,  with  a  single  amendment,  remained 
unchanged  until  1876,  was  popularly  termed  "  Plumer' s 
Constitution."     "  On  the  subject  of  religion  he  proposed, 


VIEWS    OF    GOYEUXOll    TLUMER.  77 

instead  of  the  former  provisions,  an  article  securing  to 
every  person  in  the  State  the  inestimable  privilege  of  wor- 
shipping God  in  a  manner  agreeable  to  the  dictates  of  his 
own  conscience  ;  and  prohibiting  the  Legislature  from  com- 
pelling any  person  either  to  attend  any  place  of  public  wor- 
ship, or  to  pay  taxes  for  the  building  of  churches,  or  for 
the  support  of  religious  teachers,  except  in  pursuance  of  his 
own  free  act  and  agreement.  This  amendment  was  wide 
enough  to  embrace  the  Roman  Catholic,  on  the  one  hand, 
and  the  Deist  on  the  other."  (Life  of  Plumer,  116,  117.) 
This  was  defeated.  He  moved  to  abolish  the  relio-ious  test 
for  office-holders,  who  were  required  by  the  Constitution  to 
be  "  of  the  Protestant  religion."  This  provision  vras  at 
first  rejected,  but  afterwards  adopted  by  the  convention 
though  rejected  by  the  people.  "  He  refused,  in  the  church- 
tax  cases,  to  be  of  counsel  for  any  town  or  parish  which 
sought  to  compel  men  to  pay  taxes,  contrary  to  their  ^vill, 
for  religious  purposes  ;  but  offered  his  services  readily  to 
those  who  claimed  exemption  from  such  taxes."  He  had 
defied  the  judges.  "  During  the  session  of  the  Superior 
Court  at  Dover  (February,  1799),  Judge  Livermore  pri- 
vately informed  me,"  says  Governor  Plumer,  "that  his 
brethren,  Farrar  and  Wingate,  had  exj^ressed  to  him  a 
decided  disapprobation  of  my  constancy  and  zeal  in  support- 
ing those  who  claimed  exemption  from  taxes  for  the  main- 
tenance of  clergymen.  I  replied  I  was  sorry  that  any  of  the 
court  were  so  much  in  favor  of  supporting  a  privileged  order  ; 
but  that  this  circumstance,  instead  of  checking,  would 
increase  my  exertions,  and  so  long  as  I  remained  at  the  bar, 
the  court  would  find  me  a  persevering  and  determined  advo- 
cate for  the  rights  of  conscience  and  of  property,  both 
involved  in  these  issues."     (Life  of  Plumer,  185,  187.) 

In  his  message  to  the  Legishiture  of  June  6,  1816,  Gov- 
ernor Plumer  said  :  "  The  rights  of  conscience  and  of  private 
judgment  in  religious  matters  are  not  only  secured  by  our 
Constitution  to  all  men,  but  are,  in  their  nature,  inalienable. 


78  DARTMOUTH  COLLEGE  CAUSES. 

Civil  and  religious  liberty  have  usually  flourished  and  expired 
together.  To  preserve  their  purity  requires  the  constant, 
unremitted  vigilance  of  the  people  and  their  legislators.  If 
any  religious  associations  request  acts  of  incorporation,  to 
enable  them  more  fully  and  securely  to  enjoy  their  religious 
privileges,  it  appears  to  be  our  duty  to  grant  them.  The 
correctness  of  their  tenets  is  a  subject  that  lies  between  God 
and  their  own  consciences,  and  is  one  that  no  human  tribunal 
has  any  right  to  decide.  While,  therefore,  it  becomes 
every  man  scrupulously  to  examine  the  foundations  of  his 
own  belief,  he  cannot  guard  with  too  much  jealousy  against 
the  encroachments  of  the  civil  power  on  his  religious  lib- 
erties." 

Emanating  from  almost  any  other  source,  the  easy  flowing 
words  of  the  message  in  relation  to  religious  toleration  would 
have  had  little  significance  ;  but  coming  from  Plumer,  it  was 
otherwise. 

Everybody  knew  that  he  had  been  assailed  without  meas- 
ure for  these  opinions ;  that  for  more  than  a  quarter  of  a 
century  he  had  been  the  unyielding,  persistent,  and  unpaid 
champion  of  religious  toleration,  and  that  his  message  was 
the  signal  gun  for  an  assault  all  along  the  line.  The  Legis- 
lature promptly  responded  by  passing  acts  of  incorporation 
in  the  interest  of  all  denominations. 

In  the  Senate,  on  June  27,  1816,  an  attempt  was  made  to 
engraft  upon  the  College  Act  the  anti-toleration  views  so 
ofiensive  to  Plumer,  by  an  amendment  providing  "  that  the 
president  and  other  executive  officers  of  said  University  shall 
be  of  the  Protestant  religion."  This  was  defeated,  four  of 
the  senators,  led  by  Bingham, — Webster's  college  chum 
and  intimate  friend,  —  voting  in  the  affirmative,  and  eight 
in  the  negative. 

The  act  amending  the  charter  provided  that  ' '  perfect 
freedom  of  religious  opinions  should  be  enjoyed  by  all  the 
students  and  officers  of  the  University." 

The  rule  which  Governor  Plumer  observed  in  the  appoint- 


RELIGIOUS    TOLEKATION.  79 

ment  of  trustees  and  overseers  of  Dartmouth  University  is 
thus  stated  by  his  son  :  "  He  introduced  men  of  both  polit- 
ical parties,  and  of  all  the  prominent  religious  sects.  The 
College  government  had  been  hitherto  Calvinistic  in  its 
religion  and  Federalist  in  its  politics.  His  appointments 
brought  both  political  parties  into  each  board,  without  giving 
any  one  religious  sect  the  preponderance  in  either.  Dr. 
Parish  having  written  to  him,  ex}3ressing  the  hope  that  a 
man's  being  a  Federalist  would  not  prevent  his  being  elected 
an  officer  of  the  institution,  he  said,  in  reply  :  '  It  has  been  a 
subject  of  deep  regret  to  me  that  the  cause  of  Dartmouth 
University  has  been  considered  a  party  question.  My  polit- 
ical op23onents  made  it  such,  in  hopes  of  obtaining  supj)ort 
of  their  party  politics.  But,  had  I  the  power  of  appointing 
the  officers  of  the  University,  I  would  select  those  men  only 
for  office  who  are  best  qualified,  without  regard  to  the 
religious  sect  or  political  party  to  which  they  are  attached.'  " 
(LifeofPlumer,  439.) 

On  December  25,  1816,  the  Legislature  passed  an  act 
providing  — 

"  That  the  real  and  personal  estates  of  all  ordained  ministers  of 
the  gospel,  of  every  denomination,  within  this  State,  shall  hereafter 
be  assessed  and  taxed  in  the  same  way  and  manner  as  other  estates 
are  now,  or  hereafter  may,  by  law,  be  taxed ;  any  law,  usage  or 
custom  to  the  contrary  notwithstanding.  Provided,  nevertheless, 
that  nothing  in  this  act  shall  be  so  construed  as  to  affect  any  con- 
tract, in  writing,  heretofore  made  between  any  town  in  this  State 
and  the  minister  thereof." 

After  a  most  unprecedented  struggle,  this  movement  for 
religious  toleration  culminated,  in  1819,  in  Dr.  Whipple's 
Toleration  Act.  This  was  so  called  because  Dr.  Whipple, 
the  member  from  Wentworth,  —  member  of  Congress  from 
1822  to  1830,  —  was  the  author  of  its  most  vital  provisions, 
and  supported  it  with  great  ability  and  eloquence.  Its 
passage  marked  an  era  in  the  religious  and  political  history 
of  the  State. 


80  DARTMOUTH  COLLEGE  CAUSES. 

On  June  22,  1819,  Dr.  Whipple  proposed  the  following 
amendment  to  the  pending  bill :  — 

And  be  it  further  enacted.  That  every  religious  sect  or  denom- 
ination of  Christians  in  this  State  may  associate  and  form  societies, 
may  admit  members,  may  establish  rules  and  by-laws  for  their 
regulation  and  government,  and  shall  have  all  the  corporate  pow- 
ers which  may  be  necessary  to  assess  and  raise  money  by  taxes 
upon  the  polls  and  ratable  estate  of  the  members  of  such  associa- 
tion, and  to  collect  and  appropriate  the  same  for  the  purpose  of 
building  and  repairing  houses  for  pubhc  worship,  and  for  the  sup- 
port of  the  preaching  of  the  gospel ;  and  the  assessors  and  col- 
lectors of  such  associations  shall  have  the  same  powers  in  assessing 
and  collecting  said  moneys,  and  shall  be  liable  to  the  same  penal- 
ties, as  similar  town  officers  now  have  and  are  liable  to.  Provided, 
That  no  person  shall  be  compelled  to  join  or  support,  nor  be  classed 
with  or  associated  to,  any  congregation,  church,  or  religious  so- 
ciety, without  his  express  consent  first  had  and  obtained.  Pro- 
vided, also,  If  any  person  shall  choose  to  separate  himself  from 
such  society  or  association  to  which  he  may  belong,  and  shall 
leave  a  written  notice  thereof  with  the  clerk  of  such  society  or 
association,  he  shall  thereupon  be  no  longer  liable  for  any  future 
expense  which  may  be  incurred  by  said  society  or  association. 

This  amendment  was  supported  by  Ichabod  Bartlett,  coun- 
sel for  Judge  Woodward  and  others,  Dr.  Whipple  opening 
and  closing  the  debate.  It  was  carried:  yeas,  96;  nays, 
88.  The  passage  of  the  act  was  treated  with  a  storm  of 
denunciation.  Its  supporters  were  declared  to  be  infi- 
dels, —  enemies  of  God  and  religion.  It  was  said,  "  When 
the  wicked  bear  rule,  the  people  mourn,"  and  the  people 
were  advised  to  burn  their  Bibles.  But  time,  which  tests 
all  things,  demonstrated  that  this  sect,  like  others,  could 
live,  thrive,  and  prosper  without  the  aid  of  what  were  virtu- 
ally "  forced  loans." 


CHAPTER    TV. 

ORIGIN  OF  THE  CONTROVERSY  —  THE  TRUSTEES  — THE  WAR 
OF  THE  PAMPHLETEERS  — WHEELOCK  RETAINS  WEBSTER, 
AND  APPLIES  TO  THE  LEGISLATURE  — HEARING  BEFORE 
THE  LEGISLATIVE  COMMITTEE  —  WEBSTER  FAILS  TO 
APPEAR  — CORRESPONDENCE  — REMOVAL  OF  WHEELOCK, 
AGAINST  THE  ADVICE  OF  MASON  — BROWN  PUT  IN  WHEE- 
LOCK'S  PLACE. 

The  College  troubles  probably  had  their  primal  source 
in  the  antagonisms,  personal  and  otherwise,  between  the 
elder  Wheelock  and  Dr.  Bellamy,  the  theological  tutor  of 
Judge  Niles.  John  Wheelock  and  Niles  inherited  their 
views  respectively  from  father  and  tutor.  The  rill  fresh- 
ened into  a  stream,  and,  gathering  affluents  on  every  hand, 
finally  swept  all  before  it. 

Niles  became  a  trustee  in  1793.  Those  who  thoroughly 
understood  the  natures  of  the  two  men  must  soon  have 
seen  that  it  was  only  a  question  of  time  when  one  or  the 
other  would  be  driven  from  the  board. 

The  quarrel  which  resulted  in  the  College  causes  came  to 
the  surface  in  the  Board  of  Trustees  some  twelve  years 
before  the  removal  of  the  second  Wheelock.^  Political  dif- 
ferences there  had  nothing  to  do  with  it,  nor  matters  of  faith  ; 

^  Trustees  of  Dartmouth  College :  — 

Name .  Trustee  from  —  to 

Nathaniel  Niles 1793-1821 

Thomas  W.  Thompson 1802-1817 

Timothy  Farrar 1804-1826 

Elijah  Paine 1806-1828 

John  Taylor  Oilman 1807-1819 

Charles  Marsh 1809-1849 

Rev.  AsaMcFarland 1809-1822 

Rev.  Seth  Payson 1813-1820 

Rev.  Francis  Brown 181.5-1819 

Rev.  John  Smith 1811-1820 

(81 


Died. 

Age. 

1828 

86 

1817 

51 

1849 

101 

1842 

85 

1828 

74 

1849 

83 

1827 

57 

1820 

62 

1820 

36 

1831 

65 

82  DARTMOUTH  COLLEGE  CAUSES. 

for  the  board  were  nearly  all  rank  Federalists,  and  differed 
in  form,  only,  as  to  church  polity. 

The  Board  of  Trustees,  etc.,  was,  and  for  years  had  been, 
a  strange  medley  in  composition,  but  as  a  whole  the  mem- 
bers were  endowed  with  remarkable  intellectual  gifts. 

Judge  Niles  graduated  at  Princeton,  in  1766.  He  was 
the  classmate  and  devoted  friend  of  the  elder  Adams.  In 
theory,  he  was  a  follower  of  Calvin  in  theology  and  of 
Jefferson  in  politics.  He  was  a  man  of  angles  and  opposites  ; 
a  tactician,  and  an  adept  at  what  he  termed  "  caucusing  ;"  a 
manager  of  men  ;  one  who  read  every  thing,  remembered 
and  questioned  it.  He  was  a  member  of  the  Legislature, 
speaker  of  the  House,  six  times  a  presidential  elector,  a 
representative  in  Congress  from  1791  to  1795,  and  one  of 
the  judges  of  the  Supreme  Court  of  Vermont.  He  was  an 
inventor,  manufacturer,  poet,  lawyer,  priest,  physician,  and 
metaphysician,  —  a  man  of  great  and  varied  powers.  Jeffer- 
son once  said  of  him,  "  He  was  the  ablest  man  I  ever  knew." 

It  will  be  long  before  the  people  of  Vermont  will  forget 
Captain  Trotter's  jest  at  his  expense. 

Judge  Paine  was  born  in  Brooklyn,  Connecticut,  January 
21,  1757,  and  graduated  at  Harvard,  in  1781. 

He  was  the  first  president  of  the  Phi  Beta  Kappa  Society 
at  Harvard,  and  pronounced  the  first  oration  before  the 
same. 

Settling  in  Vermont,  he  was  one  of  its  pioneers,  and  was 
farmer,  road-maker,  manufacturer,  and  lawyer.  In  1786,  he 
was  a  member  and  secretary  of  the  Convention  called  to  revise 
the  State  Constitution  ;  and  in  1787,  was  elected  to  the  State 
Legislature,  and  was  a  member  until  1791,  when  he  was 
appointed  judge  of  the  Supreme  Court  of  Vermont.  He 
was  one  of  the  commissioners  to  settle  the  controversy  be- 
tween Vermont  and  New  York  in  1789,  president  of  the 
Vermont  Colonization  Society,  and  held  many  other  respon- 
sible positions.  He  was  a  senator  in  Congress  from  1795 
to  1801,  when  he  was  appointed  by  President  Adams  judge 


NILES PAINE MA1I8II THOMPSON.  83 

of  the  District  Court  of  Vermont,  which  brought  him  into 
close  connection  with  Judge  Livingston,  and  which  office 
he  held  until  his  resignation  in  1842. 

He  was  a  man  of  iron,  and  in  physical  and  mental  stature 
a  giant.  It  is  said  that  his  voice  could  be  heard  distinct 
and  audible  three-fourths  of  a  mile.  Fair-minded,  sincere, 
and  obstinate,  by  nature,  he  was  in  many  respects  the  Drouet 
of  the  board. 

Judge  Marsh,  as  he  was  popularly  called,  —  he  had  from 
the  most  creditable  motives  refused  to  accept  the  position 
of  chief  justice  of  the  Supreme  Court  of  Vermont,  —  was  a 
man  of  immense  ability,  the  cousin  of  Jeremiah  Mason,  and 
the  father  of  that  eminent  scholar  and  diplomatist,  George 
P.  Marsh,  long  one  of  our  foreign  ministers.  He  was  en- 
dowed with  an  understanding  of  singular  penetration,  was 
tenacious,  a  hater  of  what  he  termed  demagogues,  unspar- 
ing in  speech,  trenchant  ^vith  the  pen,  ever  on  the  alert, 
unyielding  and  unfearing  to  the  last  degree,  and  an  intense 
Federalist. 

None  of  these  were  New  Hampshire  men. 

Thomas  W.  Thompson  was  born  in  Boston  ;  fitted  for 
college  at  Dummer  Academy,  in  Byfield,  in  the  town  of 
Newbury,  Massachusetts,  entered  Harvard  College  in  1782, 
received  his  degree  in  1786,  served  in  Shay's  Rebellion, 
studied  theology,  became  a  tutor  in  Harvard,  read  law  at 
Newburyi3ort  with  Chief  Justice  Parsons,  and  was  admitted 
to  the  bar  early  in  1791.  In  June,  1791,  he  removed  to 
Salisbury  South  Road,  New  Hampshire,  and  entered  upon 
the  practice  of  the  law.  About  a  year  later,  he  moved  near 
to  the  Webster  place,  in  what  is  now  Franklin,  formerly 
kno^^^l  as  the  "Elms  Farm,"  and  now  as  the  Orphans' 
Home, — Richard  Fletcher,  afterwards  one  of  the  justices 
of  the  Supreme  Court  of  Massachusetts,  taking  Thompson's 
place  at  the  South  Road  in  1809. 

Thompson  was  several  times  a  meml)er  of  the  State  Legis- 
lature from  Salisbury  and  Concord ;  was   speaker  of  the 


84  DAKTMOUTH  COLLEGE  CAUSES. 

House  in  1814.  In  1805-7,  he  was  a  representative,  and 
afterwards  a  senator,  in  Congress  ;  in  1809,  he  removed  from 
Salisbury  to  Concord,  where  he  resided  at  the  time  of  his 
death.  He  was  an  eminent  lawyer  ;  was,  with  Judge  Web- 
ster, an  influential  member  of  Parson  Worcester's  church  ; 
and  the  leading,  managing  politician  of  the  Federal  party 
in  New  Hampshire.  He  was  rich  and  courtly,^ a  gentle- 
man of  the  old  school.  He  had  been  the  patron  and  legal 
instructor  of  Daniel  Webster,  and  was  one  of  his  most  inti- 
mate friends. 

Judge  Farrar  was  another.  He  was  a  leading  Federalist, 
and  the  father  of  the  second  Judge  Farrar,  —  who  read  law 
with  Webster,  was  his  partner  at  Portsmouth  from  1812  to 
181 B,  and  one  of  the  counsel  in  the  case  against  Judge 
Woodward. 

Mills  Olcott,  the  father-in-law  of  Rufus  Choate,  was  an 
eminent  lawyer  at  Hanover.  He  was  born  at  Norwich,  Ver- 
mont, and  was  a  son  of  General  Olcott,  who  was  a  member 
of  the  Council  and  lieutenant-governor  of  that  State.  He 
read  law  with  Judge  Jacob,  of  Windsor,  Vermont,  another 
of  the  trustees  ;  w^as  made  secretary  and  treasurer  of  the 
College,  in  place  of  Judge  Woodward,  by  the  old  board,  in 
1816  ;  and  in  1821  w^as  chosen  trustee,  which  office  he  held 
until  his  death,  in  1845.  He  was  the  friend  and  special 
attorney  of  William  Smith,  the  famous  Tory  chief  in  New 
York,  afterwards  chief  justice  in  Canada  ;  was  a  jDromi- 
nent  Federalist,  the  intimate  friend  of  Webster,  and  tainted 
with  the  odor  of  the  Hartford  Convention. 

Thompson  and  Olcott  married  sisters.  They  were  men  of 
the  same  type,  and  their  family  and  personal  intimacy  was 
very  close  and  confidential. 

The  rest  were  notable  men. 

Nothing  short  of  divine  power  could  control  such  men. 
Dr.  Wheelock,  walking  in  the  footsteps  of  his  father,  was 
generally  supported  by  a  majority  of  the  board  till  1809, 
when  death  and  the  influence  of  Judge  Smith,  who  was  then 


THE  FARRARS OLCOTT THE  PAMPHLETS.       85 

governor  of  New  Hampshire,  gave  a  majority  to  his  adver- 
saries. After  that,  no  friend  of  his  was  elected  to  the  board. 
For  years  there  was  a  struggle  on  the  part  of  Wheelock  to 
retain,  and  on  the  part  of  a  minority,  afterwards  grown  to  a 
majority,  "to  put  down  "  what  they  termed  the  "  domina- 
tion "  of  "Wheelock. 

Open  hostilities  broke  out  in  April,  1815,  by  the  publica- 
tion of  a  pamj)hlet  of  eighty-eight  pages,  in  the  interest  of 
Wheelock,  entitled,  "  Sketches  of  the  History  of  Dartmouth; 
College  and  Moor's  Charity-School,  with  a  Particular  Ac- 
count of  Some  Late  Remarkable  Proceedings  of  the  Board 
of  Trustees,  from  the  Year  1779  to  the  Year  1815."  The 
"  Sketches  "  charged  the  trustees  with  the  misappropriation 
of  the  Phillips  and  other  funds,  and  with  withholding  from 
him  several  thousand  dollars  which  Wheelock  had  allowed 
to  remain  in  their  hands,  subject  to  his  right  of  future 
appropriation,  etc.,  etc.  The  trustees  charged  its  author- 
ship upon  Dr.  Wheelock,  Col.  Josiah  Dunham,  a  noted 
Federalist  politician,  and  secretary  of  state  of  Vermont,  who 
wrote  the  letter  of  October  21,  1811,  to  Dr.  McFarland, 
and  was  familiar  with  the  history  of  the  College  troubles, 
and  Rev.  Dr.  Elijah  Parish.  This  was  quickly  followed, 
on  the  same  side,  by  a  like  pamphlet  of  thirty-two  pages, 
by  Dr.  Parish,  entitled,  "  A  Candid  Analytical  Review  of 
the  '  Sketches  of  the  History  of  Dartmouth  College  and 
Moor's  Charity-School,  with  a  Particular  Account  of  Some 
Late  Remarkable  Proceedings  of  the  Board  of  Trustees, 
from  the  Year  1779  to  the  Year  1815.'  " 

These  publications  created  a  great  sensation.  The  news- 
papers took  up  the  war,  and  made  the  most  of  it.  Judge 
Niles,  the  soul  of  the  anti-Wheelock  party,  published  a 
series  of  elaborate  articles  in  reply.  In  one  of  them,  in  a 
two-column  article  published  August  15,  1815,  he  says,  in 
reference  to  the  facts  stated  in  the  "  Sketches  :  "  "I  readily 
admit  that  they  [the  trustees]  have  done  the  facts  that  are 
charged." 


86  DARTMOUTir  COLLEGE  CAUSES. 

Li  1815,  Benoiii  Dewey,  James  Wheelock,  and  Benjamin 
J.  Gilbert,  a  committee  of  the  Congregational  Church  at 
Hanover,  replied  to  the  "  Sketches  "  in  a  pamphlet  of  sixty- 
eight  pages,  entitled,  "  A  True  and  Concise  Narrative  of 
the  Origin  and  Progress  of  the  Church  Difficulties  in  the 
Vicinity  of  Dartmouth  College,  in  Hanover,"  etc.  In 
August,  1815,  the  trustees  published,  in  a  pamphlet  of  one 
hundred  and  four  pages,  "  A  Vindication  of  the  Official 
Conduct  of  the  Trustees  of  Dartmouth  College,"  etc.,  writ- 
ten by  Charles  Marsh.  In  1816,  Peji^on  R.  Freeman,  a 
learned  lawyer  of  the  old  school,  soon  afterwards  appointed 
clerk  of  Story's  courts  in  New  Hampshire,  published,  in 
reply,  a  pamphlet  of  thirty-two  pages,  entitled,  "  A  Eefu- 
tation  of  Sundry  Aspersions  in  the  '  Vindication '  of  the 
Present  Trustees  of  Dartmouth  College  on  the  Memory  of 
their  Predecessors."  In  1816,  Col.  Dunham  also  replied 
in  a  pamphlet  of  ninety-five  pages,  entitled,  "  An  Answer  to 
the  '  Vindication  of  the  Official  Conduct  of  the  Trustees  of 
Dartmouth  College,'  in  Confirmation  of  the  '  Sketches,' 
with  Remarks  on  the  Removal  of  President  Wheelock." 
These  documents  contained  charges  and  counter-charges, 
criminations  and  recriminations,  in  abundance. 

About  the  time  of  the  publication  of  the  "  Sketches," 
legal  proceedings  were  threatened  and  seriously  contem- 
plated by  Wheelock.  He  at  once  took  steps  to  procure 
counsel.  There  were  obvious  reasons  why  he  should  not 
employ  governor  Plumer,  Judge  Smith,  or  Jeremiah  Mason. 
The  feeble  health  of  Plumer  had  driven  him  out  of  practice  ; 
Smith's  vote,  as  ex  officio  trustee,  in  1809,  had  delivered 
Wheelock  over  to  his  enemies  ;  and  Mason  was  the  relative 
and  intimate  friend  of  Marsh,  one  of  the  hostile  majority. 

Through  a  friend  he  applied  to  Webster,  whose  personal 
sympathies  were  then,  as  they  always  were,  with  Wheelock, 
for  his  "  professional "  assistance,  which  was  promised. 
In  June  following,  Wheelock  personally  consulted  Webster 
with  reference  to  his  troubles  with  the  trustees,  retained 


WHEELOCK   RETAINS    WEBSTER.  87 

him,  and  had  paid  him  therefor.  This,  of  course,  was  not  a 
formal  retainer  in  the  particuhir  litigation  which  followed. 
At  the  June  session,  1815,  the  time  of  his  consultation 
with  Webster,  Dr.  Wheelock  followed  up  his  charges  with 
the  oft-threatened  memorial  to  the  Legislature,  in  which  he 
set  forth  that  the  trustees  had  "forsaken  its  original  prin- 
ciples, and  left  the  path  of  their  predecessors  ;"  that  they 
had,  by  improper  "means  and  practices,"  "increased  their 
number  to  a  majority  controlling  the  measures  of  the 
board;"  "that  they  have  applied  property  to  purposes 
wholly  alien  fi-om  the  intention  of  the  donors  ;"  that  they 
have  "transformed  the  moral  and  religious  order  of  the 
institution  by  depriving  many  of  their  innocent  enjoyment 
of  rights  and  privileges  for  which  they  had  confided  in  their 
faith  ;  that  they  have  broken  down  the  barriers  and  violated 
the  charter  by  prostrating  the  rights  with  which  it  expressly 
invests  the  presidential  office." 

He  then  charges  misapplication  of  funds,  and  various 
breaches  of  trust;  and  concludes  with  the  prayer,  "that 
you  would  please,  by  a  committee  invested  with  competent 
powers,  or  otherwise,  to  look  into  the  affairs  and  manage- 
ment of  the  institution,  internal  and  external,  already  re- 
ferred to  ;  and,  if  judged  expedient,  in  your  wisdom,  that  you 
would  make  such  organic  improvements  and  model  reforms 
in  its  systems  and  movements,  as,  under  Divine  Providence, 
will  guard  against  the  disorders  and  their  apprehended  con- 
sequences." 

In  a  remonstrance  presented  to  the  Legislature,  June  19, 
1816,  by  Thompson,  Paine,  and  McFarland,  in  behalf  of 
the  trustees,  they  say  :  — 

"  By  a  reference  to  the  memorial,  it  will  be  seen  that  the  trustees 
are  charged  directly  or  indirectly  with  having  exercised  religious 
intolerance ;  with  having  systematically  promoted  one  sect  or 
party,  with  political  objects  dangerous  to  government.  Dr.  Whee- 
lock alleged  in  the  said  memorial  that  the  trustees  have  misapplied 
the  funds  of  the  college  ;  that  they  have  invaded  the  rights  of  the 


88  DARTMOUTH  COLLEGE  CAUSES. 

presidential  office ;  that  they  used  improper  means  in  the  appoint- 
ment of  executive  officers  ;  that  they  have  formed  an  unjustifiable 
connection  with  an  academy  ;  and  improperly  furnished  students 
thereof  with  aid  from  the  college  treasury ;  that  they  have  ob- 
sti'ucted  the  application  of  the  funds  of  Moor's  Charity-School, 
according  to  their  original  destination ;  that  they  have  oppressed 
him  in  the  discharge  of  his  office  as  president.  These  are  heavy 
charges  ;  and  if  they  were  founded  in  truth,  the  trustees  deserve 
the  severest  reprobation." 

In  spite  of  the  strenuous  opposition  of  the  trustees,  the 
House,  by  a  vote  of  one  hundred  and  twenty-three  to  fifty, 
granted  the  prayer  of  Wheelock,  and  a  resolution  to  this 
effect  passed  the  Legislature,  June  28, 1815.  Governor  Gil- 
man  appointed  Daniel  A.  White,  Nathaniel  A.  Haven,  both 
intimate  friends  of  Webster,  and  Ephraim  P.  Bradford,  a 
committee  ' '  to  investis-ate  the  concerns  of  Dartmouth  Col- 
lege  and  Moor's  Charity-School,"  etc.  The  hearing  was 
had  before  this  committee,  commencing  August  16,  1815. 
Before  Wheelock  knew  that  the  committee  had  accepted,  a 
portion  of  the  trustees  called  upon  the  chairman,  and  had 
the  time  of  hearing  fixed.  He  first  learned  of  it  acciden- 
tally. As  soon  as  he  heard  ofllcially  of  this  hearing,  he,  in 
consequence  of  his  consultation  with  Webster,  and  retainer, 
applied  to  him  for  assistance  before  this  committee,  in  a 
letter  dated  at  Dartmouth  College,  August  5,  1815,  in  which 
he  says  :  — 

I  take  the  earliest  moment  to  inform,  that  the  Hon.  Mr.  White 
has  communicated  by  his  letter,  dated  the  2d  inst.,  the  assignment 
made  by  the  committee  of  the  State,  to  meet,  here,  on  Wednes- 
day, the  week  preceding  commencement,  which  will  be  a  week  from 
next  Wednesday,  on  the  business  for  which  they  were  appointed. 

It  is  needless  to  say  how  highly  we  appreciate  your  distin- 
guished talents  and  virtues,  in  whatever  concerns  the  interests  of 
literature,  &  the  happiness  of  society.  You  will  permit  me  to 
express  my  ardent  desire,  that  you  would  make  it  consistent  to  be 
here  in  season  to  conduct  the  interesting  public  cause  of  truth  and 
justice,  in  which  a  sense  of  duty  has  led  me  to  be  concerned. 


CORRESPONDENCE.  89 

It  would  be  gratifying  and  useful  could  you  find  it  convenient 
to  be  here  by  next  Saturday,  or  as  long  before  the  meeting  as  may 
be.  I  much  regi-et  that  the  period  is  so  short,  and  that  there  was 
no  ground  for  my  giving  you  information  before  this  instant,  as  I 
have  made  dependence  on  you  as  counsellor  agreeably  to  our  con- 
sultation at  Concord. 

The  position  and  relations  of  the  great  object  are  much  as 
when  I  had  the  pleasure  of  seeing  you. 

I  entreat  your  goodness  not  to  fail.    You  will  please  to  consider 
me  responsible  to  remunerate  you  honorably  to  your  satisfaction. 
With  sentiments  of  very  cordial  and  great  respect,  I  am 
Dear  sir. 

Your  obliged  friend, 

&  obedient  servant, 

John  Wheelock. 
P.  S.  — I  hope  the  enclosed  will  reach  your  hand,  $20. 

For  a  copy  of  this  letter  we  are  indebted  to  the  courtesy 
of  the  officers  of  Kenyon  College,  Gambler,  Ohio. 

Webster  failed  to  appear,  and  Wheelock,  with  but  a  day 
and  a  half  in  which  to  procure  counsel  and  prepare  for  it, 
went  on  with  the  hearing  with  such  assistance  as  he  could 
obtain. 

Webster's  reasons  for  this  course  appear  in  Thompson's 
famous  letter  to  Professor  Adams,  of  July  13,  1815,  and 
Webster's  letter  to  Dunham,  of  August  25,  1815.  Thomp- 
son says  :  — 

I  have  had  a  long  conversation  with  Mr.  D.  W ,  by  which 

it  appears,  that  a  strong  desire  prevails,  that  the  Reply,  with  the 
Committee's  Report,  should  effectually  put  down  a  certain  man. 
Mr,  TF.,  Dr.  McFarland  and  /,  are  very  desirous  that  affidavits 
should  be  immediately  taken,  relative  to  such  facts  as  will  show 
that  person's  character  in  a  just  point  of  view.  I  can't  name  all 
the  points  to  which  the  testimony  should  be  directed  ;  but  you  and 
our  friends  must  hold  a  conversation  and  select  such  points  as  will 
be  productive  of  the  greatest  effect.  Full  and  satisfactory  testi- 
mony should  be  taken  relative  to  the  usury,  and  particularly  Mr. 
Kellogg' s  deposition. 


90  DARTMOUTH  COLLEGE  CAUSES. 

It  will  be  very  useful  to  obtain  testimony  (or  documents,  if 
practicable)  to  show  that  the  college  had  to  pay  Col.  Kinsman 

$ ,  in  consequence  of  the  executive  neglecting  to  enforce  the 

laws  and  orders  of  the  trustees.  Testimony  should  be  had  of 
every  trick,  contrivance  and  management  of  his,  to  show  his  true 
character. 

On  the  part  of  our  friends  at  Hanover,  great,  unceasing,  and 
systematic  efforts  should  be  made  to  collect  evidence.  It  is 
impossible  for  the  trustees  to  collect  it  but  through  our  friends. 
The  expense  must  he  CLUBB'D  amongst  us. 

I  intend,  if  possible,  to  collect  testimony  here,  to  show  that 
with  the  democrats  he  was  a  democrat  —  with  every  sect  of 
religionists  he  was  one  of  them  —  with  federalists  he  was  a  feder- 
alist, and  thus  he  descended  to  base  means  to  make  influence. 

I  have  a  scrap  of  the  envelope  of  the  communication  to  the 
Repertory,  which  will  show  the  handwriting.  I  wish  not  to  com- 
municate my  suspicions,  until  I  exhibit  at  the  commencement.  I 
can  say  thus  much,  I  think  the  writer  is  a  president's  man.  Per- 
haps this  ought  not  to  be  mentioned  just  yet. 

I  shall   depend   much   upon   the   exertions   of  our  friends    to 
procure  evidence,  and  shall  be  much   disappointed,  if  it  is  not 
immediately  and  effectually  attended  to. 
Your  friend, 

[Signed]         Tho.  W.  Thompson. 

No  notice  to  the  president  will  be  necessary. 

The  animus  of  this  letter  is  too  obvious  for  comment.  It 
is  to  be  borne  in  mind  that  Mr.  Thompson  had  been  an  emi- 
nent lawyer  ;  that  he  was  professedly  a  devoted  Christian  ; 
that  this  letter  was  written  by  him  to  one  of  the  most  bitter 
and  active  of  Wheelock's  enemies,  knowing  him  to  be 
such  ;  that  he  proposed  to.  share  the  expense  of  hunting  up 
testimony  against  a  person  upon  whom  he  was  to  sit  in 
judgment,  and  whom  he  had  predetermined  to  *'  put  down  ;  " 
and  that  he  was  apparently  the  inventor  of  the  rule  that  no 
notice  should  be  given  to  Wheelock.  Everybody  knew  that 
D.  W.  meant  Daniel  Webster,  and  that  Wheelock  was  the 
man  to  be  "  put  down."     That  this  letter  correctly  repre- 


THOMPSON WEBSTER DUNHAM .  9 1 

sented  Mr.  Webster  and  his  purposes,  and  that  they  were 
precisely  the  reverse  of  those  entertained  by  Mason,  is  not 
open  to  doubt. 

This  letter  was  a  bombshell  in  the  Wheelock  camp.  On 
account  of  this,  Dunham  wrote  his  fiery  letter  to  his  per- 
sonal and  political  friend  "Webster,  giving  the  Wheelock 
view  of  his  conduct,  to  which  Webster  replied  as  follows ; 
"  On  the  subject  of  the  dispute  between  the  president 
and  the  trustees,  I  am  as  little  informed  as  any  reading 
individual  in  society  ;  and  I  have  not  the  least  inclination  to 
espouse  either  side,  except  in  proceedings  in  which  my 
services  may  be  professional.  It  was  intimated  to  me  last 
spring,  that  the  president  might  possibly  institute  process 
against  the  trustees  for  the  recovery  of  money  due  him  from 
them ;  that  proceedings  might  also  be  commenced  in  the 
courts  of  law,  to  determine  whether  there  had  been  a  per- 
version of  the  Phillips  fund ;  and  that  in  case  these  events 
should  happen,  the  president  would  be  glad  to  engage  my 
assistance  as  counsel.  At  Concord,  the  president  suggested 
in  general  terms,  that  he  might  wish  to  obtain  my  profes- 
sional assistance  on  some  future  occasion,  which  I  readily 
promised  him.  After  Dr.  Haven  had  left  this  place  for 
Hanover,  I  received  the  president's  letter,  desiring  me  to 
be  at  Hanover  at  a  time  which  had  then  already  elapsed.  I 
answered  it  by  mail,  not  quite  so  soon  as  I  should  have  done 
if  I  had  not  expected  some  private  conveyance,  and  if  I  had 
not  known  that  an  answer  by  any  conveyance  would  have 
been  wholly  immaterial  at  that  time.  If  I  had  received  it 
earlier,  I  could  not  have  attended,  because  the  court  enorao;ed 
me  at  home  ;  and  I  ought  to  add  here,  that  if  I  had  had  no 
other  engagements  at  the  time,  and  had  also  been  seasonably 
notified,  I  should  have  exercised  my  own  discretion  about 
undertaking  to  act  a  part  before  the  committee  at  Hanover. 
I  regard  that  as  no  professional  call.      *     *     * 

"  As  to  what  you  are  pleased  to  say  about  my  extricating 
myself  from  this  affair,  or  of  its  being  otherwise  unpleasant 


92  DARTMOUTH  COLLEGE  CAUSES. 

to  me,  as  also  what  you  observe  of  a  suspicion  entertained 
by  some  that  Mr.  Thompson  had  employed  me  to  feel  of 
Mr.  Haven  on  the  subject,  give  me  leave  to  say  that  I  should 
know  better  how  to  answer  these  remarks  if  I  were  not 
writins:  to  one  for  whom  I  have  the  hio;hest  and  warmest 
esteem,  and  of  whose  sense  of  delicacy  and  propriety  very 
few  certainly  at  any  time  have  had  occasion  to  complain. 

"  I  am  not  quite  so  fully  convinced  as  you  are,  that  the 
president  is  altogether  right,  and  the  trustees  altogether 
wrong.  *  *  *  You  may  be  well  assured  that  in  our 
nomination  of  governor  we  have  regarded  nothing  but  the 
political  interests  of  the  State.  I  can  but  flatter  myself 
that  if  you  were  better  acquainted  ^vith  the  circumstances 
you  would  think  less  unfavorably  of  the  conduct  of  your 
Federal  friends."     (1  Webster's  Priv.  Cor.  251.) 

Governor  John  Taylor  Gilman  had  exceptional  popularity, 
and  was  a  fast  friend  of  Wheelock.  The  political  allusion 
in  Webster's  letter  refers  to  the  well-known  conviction  of 
Wheelock  and  his  friends  that  Thompson  and  other  leading 
Federalists  had  determined  to  force  Gilman  into  retirement, 
and  to  put  the  elder  Farrar,  hostile  to  Wheelock,  in  his  place. 

A  few  men,  led  by  Webster,  Thompson,  and  others,  con- 
trolled the  organization  of  their  party,  and  moulded  its 
policy  to  suit  themselves.  In  important  matters  they  per- 
sonally wrote  the  leaders,  and  directed  what  the  editors 
should  say.  A  mass  of  correspondence  shows  that  the  most 
persistent  efforts  were  made  to  compel  Farrar  to  accept  the 
nomination,  contrary  to  every  inclination,  and  thus  j)ut  doAvn 
Gilman,  who  did  not  desire  the  position,  but  whose  friends 
did  not  wish  him  driven  from  it. 

Putting  a  modest  estimate  upon  his  powers,  and  feeling 
the  infirmities  of  age  creeping  on,  Farrar  firmly  declined. 

Webster  was  under  great  obligations  to  Farrar,  for  in  one 
sense  he  was  the  founder  of  Mr.  Webster's  political  fortunes  ; 
and  he  could  do  nothing  but  acquiesce  in  the  declination. 
How  he  felt  about  it,  in  some  respects,  is  shown  in  his  letter 


GOVERNOR  OILMAN — THE  ELDER  EARRAR.       93 

from  Washington  to  Moody  Kent,  dated  February  5,  1815, 
in  which  he  says  :  "I  exceedingly  regi-et  the  state  of  things 
in  N.  Hampshire,  respecting  governor.  It  is  just  what  I 
expected  from  the  resolution  taken  to  support  Gov.  Gilman 
again,  &  compel  him  to  stay  in  the  chair  against  his  will. 
We  must  sometime  bring  forward  a  new  candidate.  When 
can  it  be  probably  done  better  than  it  could  this  year  ?  As 
it  is  I  hope  Gov.  G.  ^all  bo  chosen,  &  that  all  possible  exer- 
tions will  be  used  to  reconcile  those  who  feel  dissatisfied,  & 
to  give  him  the  undivided  support  of  the  Federalists.  But 
it  is  a  very  bad  business. 

< '  You  will  see  by  the  papers  that  the  British  army  has 
been  repulsed  with  great  loss  in  an  attack  on  Jackson's 
lines.  Unless  something  signal  is  done  by  the  fleet,  New 
Orleans  will  be  safe.  At  present  the  prospect  is  very 
favorable. 

"  The  celebrated  John  Randolph  of  Roanoke  is  a  lodger 
in  this  house  (Crawford's) .  All  the  descriptions  I  had  reed. 
of  his  personal  appearance  gave  me  no  correct  impression. 
I  should  probably  fail  in  attempting  to  describe  him  to  you. 
He  is  tall ;  say,  a  little  more  than  six  feet,  legs  rather  long, 
in  proportion  to  his  body.  He  is  slender  —  somewhat  l)road 
over  the  shoulders  ;  but  thin,  his  face  rather  flat  &  broader 
than  you  have  probably  imagined,  complexion  sallow,  and 
skin  wrinkled.  His  eyes  not  large,  very  black  &  sparkling 
&  placed  a  pretty  good  distance  apart.  Nose  short  &  regu- 
lar. His  hair  is  suffered  to  grow  long  all  over  his  head  & 
is  gathered  &  tied  up  with  a  ribbon  Ijehind.  His  coun- 
tenance is  older  than  I  expected  to  see  it.  The  sallow  & 
wrinkled  appearance,  something  such  as  we  never  or  seldom 
see  in  N.  E.  is  not  unfrequent  among  the  sedentary  men  of 
Virginia  &  I  suppose  other  Avarm  climates.  So  much  for 
the  person  of  Mr.  Randolph.  He  is  now  on  his  return 
home  from  the  northward.  He  is  to  take  the  field  agt. 
Eppes  in  the  spring,  &  his  friends  generally  think  he  will 
succeed  in  the  election.     They  say  he  would  certainly  if  he 


94  DARTMOUTH  COLLEGE  CAUSES. 

would  take  unusual  pains,  but  he  seems  disinclined  to  make 
much  exertion  for  himself, 

"  The  day  after  to-morrow  or  thereabouts  I  expect  to 
leave  here  for  home  in  order  to  be  there  the  first  day  of  the 
court  when  I  hope  to  see  you." 

A  portion  of  this  letter  is  not  pertinent  to  the  matter  in 
hand,  but  is  so  characteristic  that  we  insert  it. 

That  Thompson  wrote  the  truth  to  Adams  admits  of  no 
doubt.  That  Webster  did  not  meet  the  issue  raised  by  that 
letter  squarely,  is  too  plain  for  cavil.  The  key  to  this  course 
lies  in  the  fact  that  Webster's  most  devoted  friends  and 
political  adherents  were  hostile  to  Wheelock.  Their  per- 
sonal influence,  and  political  complications  and  considera- 
tions, detached  him  from  Wheelock,  in  the  teeth  of  his 
sympathies  and  against  his  convictions.  Webster  was 
severely  criticised  for  retaining  the  money  and  acting  cov- 
ertly, and  afterwards  openly,  for  the  other  side.  For  obvious 
reasons,  he  did  not  afterwards  appear  openly  for  the  College 
in  the  suit  brought  against  it  by  Dr.  Allen  and  Mrs.  Whee- 
lock, for  the  money  due  his  estate,  and  for  his  personal 
services. 

This  explosion  ended  the  "professional  "  relations  between 
Dr.  "VATieelock  and  Mr.  Webster,  and,  in  the  belief  of  the 
writer,  added  by  construction  another  provision  to  the  Con- 
stitution of  the  United  States,  and  changed  the  public  law 
of  the  Union. 

The  committee  of  investigation  made  their  report,  a  digest 
of  facts  some  forty  pages  in  length,  on  April  23,  1816,  to 
Governor  Oilman.  On  June  7,  1816,  it  was  laid  before  the 
Legislature  by  Oovernor  Plumer. 

On  August  15,  1815,  after  the  letter  from  Thompson 
to  Adams,  Mason  wrote  to  his  cousin  Marsh  in  relation 
to  the  proposed  removal  of  Wheelock :  "In  common 
with  many  others  I  have  felt  considerable  anxiety  for  the 
issue  of  the  matter  so  much  in  public  discussion  relative 
to   Dartmouth  College.     I  do  not  feel  either  inclined  or 


mason's  advice.  95 

competent  to  give  any  opinion  as  to  the  course  which  ought 
finally  to  be  adopted  by  the  Board  of  Trustees  for  the 
benefit  of  that  institution.  I  am  entirely  willing  to  leave 
that  to  the  determination  of  those  much  better  informed 
on  the  subject  and  better  able  to  judge.  From  certain 
intimations  which  I  have  lately  had,  I  am  led  to  believe 
an  intention  is  entertained  by  some  members  of  the  board 
of  ending  all  difficulty  ^vith  the  President  by  removing  him 
from  office.  I  greatly  fear  such  a  measure  adopted  under 
present  circumstances,  and  at  the  present  time,  would  have 
a  very  unhappy  effect  on  the  public  mind.  An  inquiry  is 
now  pending,  instituted  after  considerable  discussion,  by 
the  Legislature  of  this  State,  apparently  for  the  purpose  of 
granting  relief  for  the  subject-matter  of  complaint.  The 
trustees  acquiesce  in  this  inquiry ;  whether  they  appear 
before  the  committee  appointed  to  make  it  formally  as  a 
body,  or  informally  as  individuals,  the  public  will  not 
deem  of  much  importance.  The  Legislature,  I  think,  for 
certain  purposes,  have  a  right  to  inquire  into  an  alleged 
mismanagement  of  such  an  institution,  a  visitorial  power 
rests  in  the  State,  and  I  do  not  deem  it  important  for  my 
present  view  to  determine  in  what  department  or  how  to  be 
exercised.  The  Legislature  may  on  proper  occasion,  call  it 
into  operation.  I  have  never  seen  the  President's  memorial 
to  the  Legislature,  but  am  told  it  is  an  abstract  from  the 
'pamphlet  of  sketches.'  From  the  statements  in  that  I 
take  the  burthen  of  his  complaint  to  be,  that  the  trustees 
have  not  given  him  a  due  and  proper  share  of  power  and 
influence  in  the  concerns  of  the  College,  and  that  they  have 
improperly  used  their  own  power,  and  influence  in  patron- 
izing and  propagating  in  the  College  particular  theological 
opinions.  The  alleged  misapplication  of  funds  is  stated  as 
an  instance  of  such  misconduct.  These  opinions,  it  would 
seem,  are  particularly  disagreeable  to  the  President.  The 
whole  dispute  is  made  to  have  a  bearing  on  the  President 
personally. 


96  DARTMOUTH  COLLEGE  CAUSES. 

"  Should  the  trustees,  during  the  pendency  of  the  inquiry 
in  a  cause  in  which  they  are  supposed  to  be  a  party,  take 
the  judgment  into  their  own  hands,  and  summarily  end  the 
dispute  by  destroying  the  other  party,  they  will  offend  and 
irritate  at  least  all  those  who  were  in  favor  of  making  the 
inquiry.  Such  will  not  be  satisfied  with  the  answer  that  the 
trustees  have  the  power  and  feel  it  to  be  their  duty  to  exer- 
cise it.  It  will  be  said  that  the  reasons  which  justify  a 
removal  (if  there  be  any)  have  existed  for  a  long  time.  A 
removal  after  so  long  forbearance,  at  the  present  time,  will 
be  attributed  to  recent  irritations. 

"  That  part  of  the  President's  complaint  which  relates  to 
his  religious  grievances  addresses  itself  pretty  strongly  to 
the  prejudices  and  feelings  of  all  those  opposed  to  the  sect 
called  orthodox.  This  comprises  all  the  professed  friends 
of  liberal  religion,  most  of  the  Baptists  and  Methodists,  and 
all  the  nothingarians.  The  Democrats  will  be  against  you, 
of  course.  All  these  combined  would  compose  in  this  State 
a  numerous  and  powerful  body.  Any  measure  adopted 
by  the  trustees  with  the  appearance  of  anger,  or  haste,  will 
be  eao-erlv  seized  on.  If  the  statements  of  the  President 
are  as  incorrect  as  I  have  heard  it  confidently  asserted,  an 
exposure  of  that  incorrectness  will  put  the  public  opinion 
right.  It  may  require  time  but  the  result  must  be  certain. 
If  it  can  be  shown  that  his  complaints  are  nothing  but 
defamatory  clamor,  he  will  be  reduced  to  that  low  condition 
that  it  will  be  the  interest  of  no  sect  or  party  to  attempt  to 
hold  him  up.  I  see  no  danger  in  delay  but  fear  much  in 
too  great  haste.  Perhaps  there  is  no  occasion  at  present  to 
determine  how  long  the  trustees  should  delay  adopting  their 
final  course.  Circumstances  may  render  that  expedient  at 
a  future  time  which  is  not  now.  I  feel  much  confidence  that 
a  very  decisive  course  against  the  President  by  the  trustees 
at  the  present  time  would  create  an  unpleasant  sensation  in 
the  public  mind,  and  would,  I  fear,  be  attended  with  un- 
pleasant consequences. 


REMOVAL    OF    "WHEELOCK.  97 

"  I  am  sensible  I  have  expressed  my  opinion  very  strongly 
on  a  subject  in  which  I  have  only  a  common  interest.  I 
frankly  confess  1  have  been  somewhat  influenced  by  fears 
that  some  of  the  trustees  will  find  it  difficult  to  free  them- 
selves entirely  from  the  effects  of  the  severe  irritation  they 
must  have  lately  experienced." 

The  trustees,  disregarding  the  advice  of  Mason,  and 
without  waiting  for  the  report  of  the  investigating  com- 
mittee, on  August  20,  1815,  —  the  day  after  AVebster's 
letter  to  Dunham,  —  upon  the  motion  of  Judge  Paine, 
proceeded  to  carry  out  the  programme  laid  down  by 
Thompson  in  his  letter  to  Adams. 

The  following  is  a  record  of  their  actions,  as  written  down 
by  themselves :  — 

A  Report  of  a  Committee  of  the  Board  of  Trustees  having 
been  accepted,  stating  the  evidence  they  had  received  that  Presi- 
dent Wheelock  had  an  agency  in  writing  and  publishing  the  pam- 
phlet entitled  "  Sketches  of  the  History  of  Dartmouth  College," 
&c.,  and  the  President  having  presented  to  the  Board  a  written 
representation  in  the  nature  of  a  plea  to  the  jurisdiction  of  the 
court,  the  following  Resolutions  were  introduced  by  Judge  Paine, 
President  Wheelock  was  served  with  a  copy,  and  inquired  of,  at 
different  times,  if  he  had  any  communication  to  make  to  the 
Board  on  the  subject,  or  wished  time  for  consideration. — His 
answers  were  evasive.  The  truth  of  the  allegations  in  the  pre- 
amble to  the  Resolutions,  not  being  questioned  by  President  Whee- 
lock or  any  member  of  the   Board,   the  Resolutions  were   then 

adopted. 

Dartmouth  College,  August  2G,  1815. 

Cases  sometimes  occur,  when  it  becomes  expedient  that  cor- 
porate bodies,  whatever  confidence  they  may  feel  respecting  the 
rectitude  and  propriety  of  their  own  measures,  should  explain  the 
grounds  of  them  to  the  public.  Such  an  explanation  becomes 
peculiarly  important  when  the  concerns  committed  to  their  care 
are  dependent  on  public  opinion  for  their  prosperity  and  success. 
Into  such  a  situation  the  Trustees  of  Dartmouth  College  consider 
themselves  now  brought.  Under  a  sense  of  this  duty,  the}^  have 
already  cheerfully  submitted  their  past  acts  to  the  inspection  of  a 


98  DARTMOUTH    COLLEGE    CAUSES. 

Committee  of  the  Legislature  of  tlie  State ;  and  from  a  similar 
view  of  that  duty,  they  now  proceed  to  state  the  reasons  that  lead 
them  to  withdraw  their  further  assent  to  the  nomination  and 
appointment  of  Doct.  John  Wheelock  to  the  Presidency  of  Dart- 
mouth College. 

First.  He  has  had  an  agency  in  publishing  and  circulating  a 
certain  anonymous  pamphlet,  entitled,  "  Sketches  of  the  History 
of  Dartmouth  College  and  Moor's  Charity-School,"  and  espoused 
the  charo^es  therein  contained  before  a  Committee  of  the  Legisla- 
lure.  Whatever  might  be  our  views  of  the  principles  which  had 
gained  an  ascendancy  in  the  mind  of  President  Wheelock,  we 
could  not,  without  the  most  undeniable  evidence,  have  believed 
that  he  could  have  communicated  sentiments  so  entirely  repugnant 
to  truth,  or  that  any  person  who  was  not  as  destitute  of  discern- 
ment as  of  integrity,  would  have  charged  on  a  public  body  as  a 
crime  those  things  which  notoriously  received  his  unqualified  con- 
currence, and  some  of  which  were  done  by  his  special  recommen- 
dation. The  trustees  consider  the  above  mentioned  publication 
as  a  gross  and  unprovoked  libel  on  the  Institution ;  and  the  said 
Dr.  Wheelock  neglects  to  take  any  measures  to  repair  an  injury 
which  is  directly  aimed  at  its  reputation,  and  calculated  to  de- 
stroy its  usefulness. 

Secondly.  He  has  set  up  and  insists  on  claims  which  the 
charter  by  no  fair  construction  does  allow  —  claims  which  in  their 
operation  would  deprive  the  corporation  of  all  its  powers.  He 
claims  the  right  to  exercise  the  whole  executive  authority  of  the 
College,  which  the  Charter  has  expressly  committed  to  the  Trus- 
tees, with  the  President,  Tutors  and  Professors  by  them  ap- 
pointed. He  also  seems  to  claim  a  right  to  control  the  Corpora- 
tion in  the  appointment  of  Executive  officers,  inasmuch  as  he  has 
reproached  them  with  great  severity,  for  choosing  men  who  do  not 
in  all  respects  meet  his  wishes,  and  thereby  embarrasses  the  pro- 
ceedings of  the  Board. 

TJiirdly.  From  a  variety  of  circumstances  the  Trustees  have 
had  reason  to  conclude  that  he  has  embarrassed  the  proceedings  of 
the  executive  oflScers  by  causing  an  impression  to  be  made  on  the 
minds  of  such  students  as  have  fallen  under  censure  for  trans- 
o-ressions  of  the  laws  of  the  Institution,  that  if  he  could  have  had 
his  will  they  would  not  have  suffered  disgrace  or  punishment. 


REASONS    FOR    THE    REMOVAL.  99 

Fourthly.  The  Trustees  have  obtained  satisfactory  evidence, 
that  Dr.  Wheelock  has  been  guilty  of  manifest  fraud  in  the 
application  of  the  funds  of  Moor's  School,  by  taking  a  youth 
who  is  not  an  Indian,  but  adopted  by  an  Indian  tribe  under  an 
Indian  name,  and  supporting  him  on  the  Scotch  fund,  which  is 
granted  for  the  sole  purpose  of  instructing  and  civilizing  Indians. 

Fifthly.  It  is  manifest  to  the  trustees  that  Dr.  Wheelock  litis, 
in  various  ways,  given  rise  and  circulation  to  a  report,  that  the 
real  cause  of  the  dissatisfaction  of  the  Trustees  with  him  was  a 
diversity  of  religious  opinions  between  him  and  them,  when  in 
truth  and  in  fact  no  such  divei'sity  was  known,  or  is  now  known  to 
exist,  as  he  has  publicly  acknowledged  before  the  Committee  of 
the  Legislature  appointed  to  investigate  the  affairs  of  the  College. 

The  Trustees  adopt  this  solemn  measure  from  a  full  convic- 
tion that  the  cause  of  truth,  the  interest  of  this  institution,  and  of 
science  in  general,  require  it.  It  is  from  a  deep  conviction  that 
the  College  can  no  longer  prosper  under  his  presidency.  They 
would  gladly  have  avoided  this  painful  crisis.  From  a  respect  to 
the  honored  Father  of  Dr.  Wheelock,  the  Founder  of  this  Institu- 
tion, they  had  hoped  that  they  might  have  continued  him  in  the 
Presidency  as  long  as  he  was  competent  to  discharge  its  duties. 

They  feel  that  this  measure  cannot  be  construed  into  any  dis- 
respect to  the  Legislature  of  New  Hampshire,  whose  sole  object 
in  the  appointment  of  a  committee  to  investigate  the  affairs  of  the 
College  must  have  been  to  ascertain  if  the  Trustees  had  forfeited 
their  charter,  and  not  whether  they  had  exercised  their  charter 
powers  discreetly,  or  indiscreetly  —  not  whether  they  had  treated 
either  of  the  executive  officers  of  College  with  propriety  or  impro- 
priety.—  They  will  ever  submit  to  the  authority  of  law.  The 
Legislature  have  appointed  a  committee  to  examine  the  concerns 
of  the  College  and  the  school  generally'.  The  Trustees  met  that 
committee  with  promptitude,  and  frankly  exhibited  every  measure 
of  theirs  which  had  been  a  subject  of  complaint,  and  all  the  con- 
cerns of  the  institution  as  far  as  their  knowledge  and  means 
would  permit.  They  wish  to  have  their  acts  made  as  public  as 
possible.  The  committee  of  the  legislature  will  report  the  facts, 
and  the  Trustees  will  cheerfully  meet  the  issue  before  any  tribunal 
competent  to  try  them  according  to  the  principles  of  their  charter. 

They  consider  this  crisis  as  a  severe  trial  to  the  institution ; 


100  DARTMOUTH  COLLEGE  CAUSES. 

but  they  believe  that  in  order  to  entertain  a  hope  that  it  will 
flourish  and  be  useful  they  must  be  faithful  to  the  trust  —  that  they 
must  not  approve  of  an  officer  who  labors  to  destroy  its  reputa- 
tion, and  embarrass  its  internal  concerns.  They  will  yet  hope 
that  under  the  smiles  of  Divine  Providence,  this  institution  will 
continue  to  flourish,  and  be  a  great  blessing  to  generations  to  come. 

Therefore, 

Resolved,  That  the  appointment  of  Dr.  John  Wheelock  to  the 
Presidency  of  this  College,  by  the  last  will  of  the  Rev.  Eleazar 
Wheelock,  the  Founder  and  first  President  of  this  College,  be,  and 
the  same  is  hereby,  by  the  Trustees  of  said  College,  disapproved. 
And  it  is  further  — 

Resolved,  That  the  said  Dr.  John  Wheelock,  for  the  reasons 
aforesaid,  be,  and  he  is  hereby,  displaced  and  removed  from  the 
office  of  President  of  said  College. 

Resolved,  That  for  the  reasons  before  stated,  the  said  Trustees 
deem  the  said  Dr.  John  Wheelock  unfit  to  serve  the  interests  of 
the  College  as  a  Trustee  of  the  same,  and  that,  therefore,  he  be 
displaced  and  removed  from  the  said  office  of  Trustee  of  said 
College ;  and  that  the  Trustees  will,  as  soon  as  may  be,  elect  and 
appoint  such  Trustee  as  shall  supply  the  place  of  the  said  Dr. 
John  Wheelock  as  a  trustee. 

Resolved,  That  for  the  reasons  aforesaid,  the  said  Dr.  John 
Wheelock  be,  and  he  is  hereby,  removed  from  the  office  of  Pro- 
fessor of  History  in  this  College. 

Two  of  the  trustees,  Johu  T.  Gilman,  the  governor  of 
New  Hampshire,  and  Judge  Jacob,  of  Vermont,  protested 
against  the  action  of  the  trustees :  first,  because  under 
the  circumstances  they  had  no  jurisdiction ;  and,  second, 
because  no  evidence  was  adduced  to  support  any  of 
the  charges.  They  conclude  their  protest  in  the  follow- 
ing pointed  language  :  "  Whatever  evidence  might  exist  in 
the  minds  of  the  framors  of  the  resolutions,  in  proof  of  the 
allegations  contained  in  the  preamble,  no  evidence  was  laid 
before  the  board  respecting  the  same ;  nor  any  papers 
whatever  relating  thereto  ;  not  even  respecting  the  severe 
charge  of  '  manifest  fraud  '  in  the  application  of  the  funds 
of  Moor's  School." 


PROTEST    OF    GOVERNOR    OILMAN    AND    JUDGE    JACOB.       101 

Wheelock  was  removed  on  Saturday  ;  and  on  the  Monday 
following,  K.GV.  Francis  Brown  was  put  in  his  place. 

Ml-.  Brown  was  born  January  11,  1784,  in  Chester,  New 
Hampshire,  where  Judges  Bell  and  Richardson  so  long 
resided,  and  made  his  home  there  till  about  1810.  He 
gi'aduated  at  Dartmouth  College  in  1805,  spent  the  follow- 
ing year  in  the  family  of  Judge  Paine,  one  of  the  trustees 
of  the  College,  as  a  private  tutor,  and  for  the  next  three 
years  was  a  tutor  in  Dartmouth,  pursuing  at  the  same  time 
his  theological  studies. 

On  his  twenty-sixth  birthday  he  was  ordained,  and 
became  pastor  of  the  Congregational  Church,  at  North 
Yarmouth,  Maine.  He  was  soon  after  chosen  professor  of 
languages  at  Dartmouth,  a  position  he  was  compelled  to 
decline.  For  five  years  he  labored  with  great  zeal  and 
success  at  North  Yarmouth.  He  was  inaugurated  president 
of  Dartmouth,  September  27,  1815,  and  died  July  27, 
1820. 

He  was  a  close  student  and  an  excellent  scholar ;  a  man 
of  strong  intellect  and  firm  convictions,  —  circumspect,  cour- 
teous, patient,  pertinacious  ;  a  keen  obseiwer  of  men,  and  an 
astute  diplomat :  but  the  schemes  with  which  his  name 
is  intimately  connected,  for  attempting  to  overawe  the 
State  court,  and  manipulating  the  press  and  certain  judges 
of  the  Supreme  Court  of  the  United  States,  probably  origi- 
nated in  other  minds  than  his.  Made  the  head  of  the  Col- 
lege at  the  early  age  of  thirty-one,  and  in  the  midst  of  a 
tempest,  he  exhibited  rare  tact  and  administrative  genius.     . 

From  nature,  alleged  personal  grievances,  associations, 
religious  training,  and  his  views  as  to  church  polity,  he  was 
an  anti-Wheelock  man. 


CHAPTEK    V. 

THE  QUARREL  BECOMES  A  POLITICAL  ISSUE  — GOVERNOR 
PLUMER:  HIS  NOMINATION,  ELECTION,  AND  MESSAGE  — 
STRUGGLE  IN  THE  LEGISLATURE  — THE  BELL  PASSES- 
CORRESPONDENCE— MOVEMENTS  TO  CONTROL  THE  PRESS  — 
OLD  TRUSTEES  HESITATE— THEY  REFUSE  TO  ACCEPT  THE 
ACT  — TRUSTEES  AND  OVERSEERS  OF  THE  UNIVERSITY 
APPOINTED  — THEIR  MEETINGS  FAIL  FOR  WANT  OF  A 
QUORUM  — PROCEEDINGS  OF  OLD  TRUSTEES  AND  THE  UNI- 
VERSITY BOARDS  — OPINION  OF  THE  SUPERIOR  COURT  OF 
JUDICATURE  — MESSAGE  OF  NOVEMBER  20,  1816  — LEGISLA- 
TION OF  DECEMBER,  1816— VACANCIES  FILLED  — ADDRESS 
TO  PUBLIC  BY  OLD  TRUSTEES  — WHEELOCK'S  DEATH- 
GIVES  FORTY  THOUSAND  DOLLARS  TO   THE  UNIVERSITY. 

So  FAR,  this  had  been  a  controversy  among  Calvmists  and 
Federalists.  It  had  originated  among  those  professing  the 
same  religious  faith — between  the  Federalist  trustees  of  a 
Federalist  college.  A  Federalist  governor  had  appointed 
an  investisratino;  committee,  under  the  vote  of  a  Federalist 
Legislature,  upon  a  memorial  of  the  Federalist  Wheelock. 
But  other  forces  were  soon  to  make  themselves  felt.  The 
Anti-Federalists  had  again  nominated  Plumer  for  governor. 
He  had  long  been  in  political  life,  a  senator  in  Congress, 
and  for  many  years  had  been  one  of  the  pillars  in  the  great 
Federal  triumvirate  —  Smith,  Mason,  and  Plumer  —  which 
controlled  the  State.  But  the  troubles  with  Great  Britain 
which  preceded  the  war  of  1812  carried  him  over  to  the  side 
of  Jefterson.  He  lacked  the  affluent  learning  of  Smith,  and 
the  original  power  of  Mason  ;  he  had  little  of  their  aptitude 
with  the  pen  ;  he  was  no  orator  ;  but  his  industry,  thorough- 
ness of  preparation,  great  knowledge  of  men,  and  vigor  of 

(102) 


GOVEUXOR    PLUMER WEBSTER's    TLAN.  103 

understanding  enabled  him  to  compete  successfully  with 
them  and  Webster.  His  private  life  was  stainless.  He 
possessed  great  moral  courage  and  independence,  and  yet 
he  was  the  Nestor  of  the  politicians  of  his  day.  His  sym- 
pathies were  naturally,  as  they  were  openly,  with  Wheelock. 
A  heated  political  contest  came  on.  Under  the  ban  in  their 
own  party,  Wheelock' s  friends,  by  the  hundred,  voted 
steadily  for  Plumer.  The  strong  man  carried  the  party  on 
his  back,  and  was  elected  by  a  handsome  majority. 

Brown,  Thompson,  and  Webster  at  last  saw  what  was  com- 
ing, and  made  ready,  as  best  they  could,  to  avert  the  storm. 

Webster,  in  his  letter  of  June  4,  1816,  to  Brown,  says  : 
"  I  received  yours  last  evening.  You  do  not  feel  a  stronger 
wish  than  I  do  that  nothing  may  take  place  at  this  session 
detrimental  to  the  College,  and  I  am  willing  to  do  an3^hing 
in  my  power  to  soften  the  irritated  feelings  of  Democracy 
towards  it.  I  am  under  engagements  to  go  to  Boston 
to-morrow,  and  shall  be  in  that  town  four  or  five  days. 
From  Boston  I  can  go  direct  to  Concord,  if  it  should  be 
thought  useful.  Mr.  Mason  will  go  up,  I  believe,  the  first 
of  next  week.  I  have  some  hope  that  the  Legislature  will 
do  nothing,  partly  because  I  hope  they  will  be  satisfied  in 
some  measure  with  the  report,  and  partly  from  the  hopeless 
state  of  Dr.  W.'s  health.  It  is  a  favorite  idea  with  some 
to  create  a  new  college.  Would  it  not  be  well  if  this  idea 
could  be  encouraged  and  to  let  the  ill-humors  work  off  in 
that  direction?  Suppose  a  proposition  should  be  made  for 
a  committee  to  report  at  next  session,  upon  the  expediency 
of  making  a  new  college  at  Concord,  and  what  donations, 
&c.,  could  be  obtained  for  such  an  object. 

"  'Resolved,  That  a  joint  committee  of  both  Houses  be  ap- 
pointed to  take  into  consideration  the  expediency  of  estabUshing 
a  seminary  of  learning,  in  some  part  of  this  State,  to  be  called 
the  University  of  New  Hampshire,  and  to  ascertain  what  endow- 
ment for  such  institution  could  be  obtained  from  private  donation, 
and  also  what  grants  of    land  or  money  could  be  properly  and 


104  DARTMOUTH  COLLEGE  CAUSES. 

conveniently  made  to  the  same  by  the  State  ;  and  also  to  prepare 
a  draft  of  a  charter  for  such  seminary,  and  to  report  at  the  next 
session  of  the  Legislature.' 

*' Perhaps  if  something  of  this  sort  should  be  brought 
forward  by  somebody  who  has  been  favorably  inclined  to 
Dr.  AY.,  but  who  would  wish  to  prevent  violent  measures, 
it  might  do  good. 

<'  Mr.  Tilton,  of  Exeter,  I  should  think,  might  do  it  to 
advantage.  Think  of  this  ;  Mr.  Cutts,  the  bearer  of  this, 
is  an  intelligent  friend  of  mine,  and  capable  of  being  useful 
at  Concord.  I  recommend  it  to  you  to  cultivate  his  ac- 
quaintance, while  there.  He  is  intimate  with  Mr.  Tilton, 
and  indeed  with  most  other  leading  men  in  the  Legislature. 
Anything  that  shall  postpone  the  subject,  will  give  time  for 
the  present  feelings  to  cool  and  evaporate. 

<'  N.  B.  The  resolution  might  say  the  charter  should  be 
drawn  on  the  following  princii)les  :  — 

"  1.  A  Board  of  Trustees  to  be  inserted  in  the  bill  by  the  Leg- 
islature, to  fill  up  their  own  vacancies. 

"2.  A  Board  of  Overseers,  \iz:  Governor,  Senators,  Council- 
lors, and  Speaker  of  the  House  of  Representatives,  for  the  time 
being. 

"  3.  An  unlimited  right  of  conscience,  in  officers,  and  students ; 
no  test,  creed,  or  confession  to  be  required  of  either,  or  any 
preference,  direct  or  indirect,  of  one  religion  over  another. 

' '  If  any  thing  of  this  sort  be  done  it  ought  to  be  done 
early."     (1  Webster's  Priv.  Cor.  259,  260.) 

Mr.  Webster  seems  to  have  thought  that  a  board  of 
overseers  numbering  nineteen,  and  religious  toleration,  were 
adapted  to  every  institution  but  Dartmouth  College.  This 
adroit  move  had  some  influence  for  a  time,  but  it  failed  "to 
divide  and  conquer," 

Governor  Plumer  knew  that  corporate  power  too  often 
was  but  another  name  for  the  uncontrolled  dominion  of  one 
or    at   best   a    few    minds.     With    Dartmouth's    Board    of 


MESSAGES    OF    GOVERNOll    PLUilER.  105 

Trustees  he  feared  its  tendency  to  "jobs  "  and  corruption, 
as  well  as  its  tendency  to  absorb  power  and  infringe  upon 
individual  rights,  and  sought  to  guard  against  it.  In  his 
message  to  the  Legislature,  of  June  6,  1812,  he  says  :  "Acts 
of  incorporation  of  various  kinds  have,  within  a  few  years, 
greatly  increased  in  this  State  ;  and  many  of  them  being  in 
the  nature  of  grants,  cannot,  with  propriety,  be  revoked 
without  the  previous  consent  of  the  grantees.  Such  laws 
o'ught  therefore  to  be  passed  with  great  caution ;  many  of 
them  should  be  limited  to  a  certain  j)eriod,  and  contain 
a  reservation  authorizing  the  Legislature  to  repeal  them, 
whenever  they  cease  to  answer  the  end  for  which  they  were 
made,  or  prove  injurious  to  the  public  interest." 

In  his  message  of  June  6,  1816,  to  which  we  have  already 
referred,  Governor  Plumer  says  :  — 

"  There  is  no  system  of  government  where  the  general  diffu- 
sion of  knowledge  is  so  necessary  as  in  a  republic.  It  is  there- 
fore not  less  the  duty  than  the  interest  of  the  State  to  patronize 
and  support  the  cause  of  Hterature  and  the  sciences.  So  sensi- 
ble were  our  ancestors  of  this,  that  they  early  made  provision  for 
schools,  academies  and  a  college,  the  good  effects  of  which  we 
daily  experience.  But  all  literary  establishments,  like  everything 
human,  if  not  duly  attended  to,  are  subject  to  decay ;  permit  me, 
therefore,  to  invite  your  consideration  to  the  state  and  condition 
of  Dartmouth  College,  the  head  of  our  learned  institutions.  As 
the  State  has  contributed  liberally  to  the  establishment  of  its 
funds,  and  as  our  constituents  have  a  deep  interest  in  its  pros- 
perity, it  has  a  strong  claim  to  our  attention.  The  charter  of 
that  college  was  granted  December  13th,  1769,  by  John  Went- 
worth,  who  was  then  Governor  of  New  Hampshire,  under  the 
authority  of  the  British  king.  As  it  emanated  from  royalty,  it 
contained,  as  was  natural  it  should,  principles  congenial  to  mon- 
archy ;  among  others,  it  established  trustees,  made  seven  a  quo- 
rum, and  authorized  a  majority  of  those  present  to  remove  any 
of  its  members  which  they  might  consider  unfit  or  incapable,  and 
the  survivors  to  perpetuate  the  board  by  tliennselves  electing  others 
to  supply  vacancies.  This  last  principle  is  hostile  to  the  spirit  and 
genius  of  a  free  government.     Sound   policy  therefore    requires 


106  DARTMOUTH  COLLEGE  CAUSES. 

that  the  mode  of  election  should  be  changed,  and  that  trustees,  in 
future,  should  be  elected  by  some  other  body  of  men.  To  in- 
crease the  number  of  trustees  would  not  only  increase  the  secu- 
rity of  the  college,  but  be  a  means  of  interesting  more  men  in  its 
{prosperity.  If  it  should  be  made  in  future  the  duty  of  the  Presi- 
dent, annually  in  May,  to  report  to  the  Governor  a  full  and  par- 
ticular account  of  the  state  of  the  funds,  their  receipts  and  expen- 
ditures, the  number  of  students  and  their  progress,  and  generally 
the  state  and  condition  of  the  college  ;  and  the  Governor  to  com- 
municate  this  statement  to  the  Legislature  in  their  June  session  ; 
this  would  form  a  check  upon  the  proceedings  of  the  trustees, 
excite  a  spirit  of  attention  in  the  officers  and  students  of  the  col- 
lege, and  give  to  the  Legislature  such  information  as  would  enable 
them  to  act  with  greater  propriety  upon  whatever  may  relate  to 
that  institution. 

"  The  college  was  formed  for  the  public  good,  not  for  the  bene- 
fit or  emolument  of  its  trustees  ;  and  the  right  to  amend  and 
improve  acts  of  incorporation  of  this  nature  has  been  exercised 
by  all  governments,  both  monarchical  and  republican.  Sir  Thomas 
Gresham  established  a  fund  to  support  lectures  in  Gresham  Col- 
lege in  London,  upon  the  express  condition  that  the  lecturers 
should  be  unmarried  men,  and,  upon  their  being  married,  their 
interest  in  the  fund  should  absolutely  cease  ;  out  the  British  Par- 
liament, in  the  year  1768,  passed  a  law  removing  the  college  to 
another  place,  and  explicitly  enacted  that  if  the  lecturers  were 
married,  or  should  marry,  they  should  receive  their  fees  and 
stipend  out  of  the  fund,  any  restriction  or  limitation  in  the  will 
of  the  said  Gresham  to  the  contrary  notwithstanding.  In  this 
country  a  number  of  the  States  have  passed  laws  that  made  mate- 
rial changes  in  the  charters  of  their  colleges.  And  in  this  State 
acts  of  incorporation  of  a  similiar  nature  have  frequently  been 
amended  and  changed  by  the  Legislature.  By  the  several  acts 
incorporating  towns,  their  limits  were  established  ;  but  whenever 
the  Legislature  judged  that  the  public  good  required  a  town  to  be 
made  into  two,  they  have  made  the  division,  and  in  some  instances 
against  the  remonstrance  of  a  majorit}'  of  its  inhabitants.  In  the 
charter  of  Dartmouth  Colleges  it  is  expressly  provided  that  the 
president,  trustees,  pi'ofessors,  tutors,  and  other  officers,  shall 
take  the  oath  of  allegiance  to  the  British  king ;  but  if  the  laws  of 
the  United  States,  as  well  as  those  of  New  Hampshire,  abolished 


Jefferson's  views  —  professor  hale.  107 

by  implication  that  part  of  the  charter,  much  more  might  they 
have  done  it  directly  and  by  express  words.  These  facts  show 
the  authority  of  the  Legislature  to  interfere  upon  this  subject; 
and  I  trust  you  will  make  such  further  provisions  as  will  render 
this  important  institution  more  useful  to  mankind." 

Governor  Plumer  communicated  this  message  to  Jeffer- 
son, who  replied,  in  liis  letter  of  July  21,  1816:  "It 
is  replete  with  sound  principles,  and  truly  republican. 
Some  articles,  too,  are  worthy  of  notice.  The  idea  that 
institutions  established  for  the  use  of  the  nation  cannot  be 
touched  nor  modified,  even  to  make  tliehi  answer  their  end, 
because  of  rights  gratuitously  supposed  in  those  employed 
to  manage  them  in  trust  for  the  public,  may  perhaps  be  a 
salutary  provision  against  the  abuses  of  a  monarch,  but  it 
is  most  absurd  against  the  nation  itself.  Yet  our  lawyers 
and  priests  generally  inculcate  this  doctrine,  and  suppose 
that  preceding  generations  held  the  earth  more  freely  than 
we  do ;  had  a  right  to  impose  laws  on  us,  unalterable  by 
ourselves  ;  and  that  we,  in  like  manner,  can  make  laws  and 
impose  burdens  on  future  generations,  which  they  will  have 
no  right  to  alter  ;  in  fine,  that  the  earth  belongs  to  the  dead, 
and  not  to  the  living."      (Life  of  Plumer,  440,  441.) 

The  committee  to  whom  the  message,  etc.,  relating  to 
this  subject  were  referred  did  not  undertake  to  decide  in 
favor  of  either  party  to  the  controversy,  but  alleged  that 
the  troubles  arose  from  certain  defects  in  the  charter,  and 
that  they  would  recur  again,  in  some  form,  unless  those  de- 
fects were  remedied.  The  case  of  Professor  Hale,  who  was 
ousted  some  thirty  years  after  on  account  of  his  Episcopal 
tendencies,  under  a  charter  granted  by  an  Episcopalian 
governor,  would  seem  to  show  that  this  committee  had  a 
prophetic  eye.  The  debates  upon  the  historical  and  consti- 
tutional questions  involved  were  able.  The  minority  were 
ably  led,  both  inside  and  outside  the  Legislature,  but  par- 
liamentary tactics  availed  them  nothing. 

In  the  remonstrance  of  Thompson,  Paine,  and  McFarland, 
of  June  19,  1816,  before  referred  to,  thev  sav  :  — 


108  DARTMOUTH  COLLEGE  CAUSES. 

"The  charter  of  Dartmouth  College  vests  certain  rights  of 
property  for  particular  uses,  in  the  trustees.  The  sovereign 
power,  having  once  made  this  grant,  cannot,  as  the  trustees 
humbly  conceive,  divest  them  of  it  so  long  as  they  exercise 
their  trust  in  conformity  to  the  true  intent  and  meaning  of  the 
charter.  They  respectfully  call  to  the  view  of  the  Honorable 
Legislature  that  Dai'tmouth  College  was  not  founded  by  the  then 
existing  sovereign.  It  was  founded  and  endowed  by  liberal 
individuals ;  and  the  charter  was  given  by  the  sovereign  to  per- 
petuate tiie  application  of  the  property  conformably  to  the  design 
of  the  donors.  If  the  propertj^  has  been  misapplied,  if  there  has 
been  any  abuse  of  power  upon  the  part  of  the  trustees,  the}'  are 
fully  sensible  of  their  high  responsibility ;  but  they  have  always 
believed,  and  still  believe,  that  a  sound  construction  of  the 
powers  granted  to  the  Legislature  gives  them,  in  this  case,  only 
the  right  to  order,  for  good  cause,  a  prosecution  in  the  judicial 
courts.  A  different  course  effectually  blends  judicial  and  legisla- 
tive powers,  and  constitutes  the  Legislature  a  judicial  tribunal." 

This  remonstrance  presented  the  Parsons  view. 

Apparently,  the  idea  that  no  Legislature  could  impair  or 
affect  the  charter  originated  with  the  schoolmen,  the  pro- 
fessors and  doctors  of  divinity,  and  not  ^vith  the  legal  giants 
in  the  board,  or  those  who  afterward  acted  as  counsel. 
The  eight  trustees,  in  their  reply  to  Wheelock,  virtually 
charge  him  with  Ijeing  its  author.  They  say :  '•  During  his 
troubles  in  the  Legislature  of  Vermont  [commencing  as 
early  as  1806]  relating  to  the  grant  of  the  township  of 
Wheelock,  the  president  has  been  often  heard  to  say  (and 
if  the  application  were  from  the  other  side,  and  designed  to 
correct  any  of  his  abuses,  would  now  say),  that  the  charter 
of  the  College  was  a  royal  grant,  and  not  under  the  control 
of  tlie  Legislature.  His  motive  in  this  proceeding  can  be 
nothing  either  more  or  less  than  to  prejudice  the  minds  of 
the  members  of  the  LegisLiture  and  of  the  people,  by 
inducing  a  belief  that  the  trustees  aim  at  an  independence 
not  given  them  by  the  charter." 

It  is  quite  apparent  that  the  trustees  intend  to  charge 
Dr.   Wheelock   with   maintaining   the  doctrine  in    1806-7 


ROYAL  GRANTS LEGISLATIVE  PROTEST,        109 

which  they  successfully  set  up  years  later.  It  is  noticeable 
that  neither  Dr.  Wheelock  nor  any  of  his  friends  denied 
the  charge.  But  on  June  24,  1816,  Thompson  and  McFar- 
land  presented  to  the  Legislature  another  remonstrance, 
setting  forth  that  the  charter  Avas  a  "  contract,"  etc. 

On  June  26,  the  bill  passed  to  be  enacted.  On  June  28, 
seventy-five  of  the  one  hundred  and  ninety  members  of  the 
House  entered  their  protest  upon  the  journal,  on  the  follow- 
ing grounds : — • 

1.  Because  the  charter  was  a  contract. 

2.  Because  "the  trustees  have  been  thereby  'despoiled 
and  deprived  of  their  property,  immunities,  and  privileges  ' 
as  trustees  of  Dartmouth  College  as  secured  to  them  l>y  the 
charter ;  and  virtually  declared  guilty  of  the  charges 
exhibited  against  them  by  the  memorial  of  Doct.  John 
Wheelock  without  being  fully  heard  in  their  defence  by 
themselves  and  counsel." 

3.  Because  it  "  appears  that  the  College  is  in  a  prosper- 
ous state  and  condition,  and  consequently  that  no  necessity 
exists  for  any  legislative  interference  whatever." 

The  fourth  reason  has  already  been  set  forth. 

Finally,  "They  protest  against  this  act,  because  its 
inevitable  tendency  is  to  make  the  highest  seat  of  literature 
and  science  in  the  State  subject  to  every  change  and  revo- 
lution of  party,  than  which  nothing  in  their  opinion  can  be 
more  destructive  to  its  welfare." 

On  the  same  day,  they  attempted  by  legislative  resolution 
to  declare  the  trustees  innocent  of  Wheelock's  chargfes. 

In  the  Senate,  a  motion  was  made  to  amend  the  bill  so 
that  it  should  not  take  effect  until  approved  by  the  trustees 
of  the  College. 

A  motion  was  then  made  to  amend  the  bill  by  inserting 
a  new  section,  providing  "  that  if,  by  reason  of  passing  this 
act,  any  of  the  property  now  belonging  to  said  College  should 
by  judgment  of  court  be  adjudged  forfeited,  or  should  any 
of  its  funds  be  impaired  by  the  operation  of  this  act,  this 


110  DARTMOUTH  COLLEGE  CAUSES. 

State  shall  save  harmless  the  trustees  of  said  College  from 
all  losses  they  may  sustain  on  account  of  such  forfeiture, 
and  from  costs  in  defending  any  suit  brought  against  them 
by  reason  of  passing  said  act."  These  amendments  were 
defeated  by  the  same  vote. 

The  recommendations  of  the  governor  became  a  law ;  the 
name  of  the  College  was  changed  to  University  ;  the  num- 
ber of  the  trustees  was  increased  to  twenty-one ;  a  board 
of  twenty-five  overseers  was  created  ;  ' '  the  president  of  the 
Senate  and  the  speaker  of  the  House  of  Representatives  of 
New  Hampshire,  the  governor  and  lieutenant-governor  of 
Vermont,  for  the  time  being,  were  made  members  of  said 
board,  ex  officio,'^  and  the  governor  and  Council  of  New 
Hampshire.  The  president  and  professors  of  the  Univer- 
sity were  required  to  take  an  oath  to  support  the  Con- 
stitution of  the  United  States  and  of  the  State  of  New 
Hampshire. 

The  trustees  were  in  a  quandary,  and  knew  not  which 
way  to  turn.  The  following  letters  will  explain  their  posi- 
tion better  than  any  words  of  ours. 

In  his  letter  of  July  5, 1816,  to  Judge  Farrar,  Thompson 
says  :  "  You  have  doubtless  seen  the  college  act  as  it  passed. 
President  Bro'v\^l  has  wi'itten  me  wishing  for  the  best  advice 
of  our  best  friends,  — and  suggesting  as  his  present  opinion 
that  the  old  Trustees  ought  not  to  yield.  He  thinks  a  nar- 
rative of  the  proceedings  of  the  Gen.  Court  ought  to  be 
published,  together  with  some  of  the  documents.  He  also 
suggests  the  expediency  of  securing  as  many  of  the  news- 
papers to  our  interest  as  possible,  &  wishes  a  series  of  num- 
bers to  be  inserted  in  the  Oracle  exposing  the  outrageous 
conduct  of  the  Legislature  &>  thinks  you  must  take  hold  of 
the  business  in  good  earnest.  He  wishes  if  practicable  to 
secure  the  Keene  Sentinel,  the  Dover  Sun  and  Cabinet. 
Do  you  know  of  any  mode  ?  I  do  not.  Is  it  practicable 
to  secure  either  of  the  Boston  papers  ?  If  we  conclude  to 
resist  the  act   it  is    absolutely  necessary  the    public  mind 


THE    PKESS JUDGE    STOllY.  LI  I 

should  be  prepared  in  some  measure  for  it.  We  think  too, 
a  good  deal  ought  to  be  said  in  the  papers  &  in  conversa- 
tion respecting  a  removal  of  the  College  to  Concord  for 
various  reasons.  He  contemplates  a  journey  to  Portsmouth 
&  on  the  seaboard  soon  to  ascertain  the  state  of  public 
opinion.  I  wish  you  &  Mr.  Webster  to  discuss  the  ques- 
tion—  what  ouo-ht  the  old  Trustees  to  do  under  existino^ 
circumstances.  I  have  devoted  much  time  to  this  unhappy 
business  &  should  gladly  be  excused  from  further  services, 
but  am  "willing  to  labor  as  long  as  there  is  any  prospect  of 
doing  any  good. 

' '  The  idea  of  a  removal  of  the  Colles-e  to  Concord  ouo^ht 
first  to  be  started  in  Portsmouth  papers." 

Below  the  signature  is  the  followino;  list  of  trustees  and 
overseers  of  the  University  :  — 

'' Trustees.  —  Aaron  Hutchinson,  Josiah  Bartlett,  Durell, 
Cyrus  Perkins,  Joshua  Darling,  M.  Harvey,  L.  Woodbury, 
Wm.  H.  Woodward,  Henry  Hubbard. 

"  Overseei's.  — Gov.  Vert.  [Vermont],  Lieut.  Gov.,  Pres. 
Senate,  Speaker,  Gov.  Langdon,  Gov.  Gray,  Gen.  Dear- 
born, Doct.  Baldwin,  Judge  Story,  Ben.  Crowningshield, 
Judge  B.  Green,  Cyrus  Perkins,  Deacon  Ticknor,  Jiidge 
Claggett,  Dudley  Chase,  H.  A.  S.  Dearborn,  Judge  J.  H. 
Hubbard,  Geo.  Sullivan,  Jas.  T.  Austin,  Clemt  Stover,  Levi 
Lincoln,  Jr.,  Albion  K.  Parris,  Doct.  Twitchell,  Rev.  Mr. 
Sutherland,  W.  A.  Griswold,  Danville." 

There  was  a  strong  and  respectable  following  in  the  Fed- 
eral party  which  was  at  heart  with  Wheelock ;  but  they 
were  not  the  men  who  controlled  the  party  organization. 
Certain  journals,  to  some  extent,  reflected  their  views.  It 
was  policy  to  silence,  manipulate,  or  subsidize  them.  At  a 
later  day,  the  N'ational  Intelligencer  was  silenced  through 
Marsh,  Hopkinson,  and  others.  It  is  obvious  that  the  old 
trustees  knew  very  early  that  Judge  Story  and  Levi  Wood- 
bury were  to  be  members  of  the  new  boards. 


112  DARTMOUTH  COLLEGE  CAUSES. 

On  July  3,  1816,  the  governor  and  council  ai^pointed 
five,  and  on  the  next  day  four  more,  trustees  of  the  Univer- 
sity ;  and  on  July  3,  they  appointed  nineteen  overseers  ;  and 
the  day  following,  the  remaining  two. 

The  new  trustees  were  :  Aaron  Hutchinson,  of  Lebanon  ; 
Josiah  Bartlett,  of  Stratham  ;  Daniel  M.  Durell,  of  Dover  ; 
Joshua  Darling,  of  Henniker ;  Matthew  Harvey,  of  Hop- 
kinton  ;  Levi  Woodbury,  of  Francestown  ;  Henry  Hubbard, 
of  Charlestown ;  Cyrus  Perkins  and  William  H.  Wood- 
ward, of  Hanover. 

By  the  act,  the  governor  and  lieutenant-governor  of 
Vermont  and  the  president  of  the  Senate  and  speaker  of 
the  House  of  Representatives  of  New  Hampshire  were 
members  of  the  Board  of  Overseers,  ex  o'ffioio. 

The  other  members  appointed  by  the  governor  and 
council  were  :  John  Langdon,  Portsmouth  ;  William  Gray, 
Boston ;  Joseph  Story  and  Benjamin  W.  Crowinshield, 
Salem,  Mass.  ;  Benjamin  Greene,  Berwick,  Me.  ;  Cyrus 
King,  Saco,  Me.  ;  Clifton  Claggett,  Amherst ;  Dudley 
Chase,  Randolph,  Vt.  ;  Jonathan  H.  Hubbard,  Windsor, 
Vt.  ;  George  Sullivan,  Exeter;  Levi  Lincoln,  Jr.,  Worces- 
ter, Mass.  ;  Albion  K.  Parris,  Paris,  Me.  ;  William  A. 
Griswold,  Danville,  Vt.  ;  Henry  Dearborn,  Roxbury,  Mass.  ; 
Henry  A.  S.  Dearborn,  Boston ;  Clement  Storer,  Ports- 
mouth ;  Thomas  Baldwin,  Boston  ;  David  Sullivan,  Bath ; 
Amos  Twitchell,  Keene  ;  Elisha  Ticknor,  Boston ;  James 
T.  Austin,  Boston. 

By  his  summons,  the  governor  promptly  convened  the 
trustees  and  Board  of  Overseers.  They  met  at  Hanover,  on 
August  26,  1816,  and  remained  in  almost  continuous  session 
for  four  days. 

Fourteen  of  the  overseers  were  j^resent.  Of  the  trustees 
there  were  present  on  the  first  day  Governor  Plumer, 
Josiah  Bartlett,  Joshua  Darling,  William  H.  Woodward, 
Levi  Woodbury,  Cyrus  Perkins,  A,  Hutchinson,  Daniel  M. 


TRUSTEES    AND    OVERSEERS    OF    THE    UNIVERSITY.       113 

Durell,  and  Stephen  Jacob.     Governor  Plumer  was  made 
chairman,  and  Judge  Woodward  secretary.     It  was  — 

"  Voted  unanimously,  That  his  Excellency  WiUiam  Plumer  be 
chairman  of  this  meeting. 

"  Voted,  That  the  Hon.  William  H.  Woodward  be  clerk  of  this 
meeting. 

"  Voted,  That  Messrs.  Plumer,  Durell,  and  Woodbury  be  a 
committee  to  confer  with  a  committee  from  the  Board  of  Over- 
seers on  the  business  of  the  present  meeting  and  the  propriety 
and  mode  of  proceeding  thereto." 

On  the  next  day,  Henry  Hubbard,  another  of  the  trustees, 
afterwards  a  member  of  the  United  States  Senate,  appeared 
and  acted  with  those  heretofore  named.     It  was  — 

"  Voted,  That  the  chairman  again  notify  the  Rev.  Francis 
Brown  of  this  meeting;  and  request  his  attendance  thereon,  or 
his  reasons  for  non-attendance. ' ' 

The  chairman  immediately  forwarded  to  Mr.  Brown,  the 
following  notice  :  — 

Hanover,  Aug.  27,  1816. 

Sir, — A  number  of  the  trustees  of  Dartmouth  University  are 
convened  at  the  treasuiy  office  of  Judge  Woodward.  They  are 
authorized  and  prepared  to  proceed  in  the  transaction  of  business, 
provided  you  will  give  your  attendance  as  required  by  statute  to 
preside  over  their  meeting. 

I  am  requested,  therefore,  by  the  gentlemen  present  to  notify 
you  of  the  above  circumstances,  in  order  that  by  repairing  here 
as  soon  as  possible  the  necessary  measures  may  be  seasonably 
adopted  preparatory  to  the  duties  and  exercises  of  to-morrow. 

Your  attendance,  or  reasons  for  non-attendance,  are  wished  for 
immediately,  if  agreeable. 

Mr.  Brown  replied  as  follows  :  — 

Tuesday  Evening,  Aug.  27,  1816. 
To  Jiis  Excellency,  William  Plumer. 

Sir,  —  Your  note  has  just  been  received  requesting  my  attend- 
ance at  Judge  Woodward's,  or  my  reasons  for  non-attendance. 


114  DARTMOUTH  COLLP^GK  CAUSES. 

With  respect  to  the  act  of  27th  June  last,  referred  to  by  your 
Excellency,  I  would  remark  that  I  have  not  supposed  any  indi- 
vidual of  the  twent3'-one  persons  contemplated  in  that  act,  as  the 
trustees  of  Dartmouth  University  was  bound  to  act  under  it, 
unless  with  his  own  deliberate  consent. 

I  have  taken  that  act  under  consideration,  together  with  the 
other  trustees  constituted  according  to  the  provisions  of  the  char- 
ter of  1769,  but  no  decision  has  as  yet  been  taken,  and  until  the 
last  mentioned  trustees  shall  conclude  to  abandon  their  charter  and 
accept  the  before  mentioned  act,  I  shall  probably  deem  it  my  duty 
not  to  attend.  The  trustees  did  not,  as  I  in  the  morning  expected 
they  would,  act  upon  the  report  of  their  committee.  It  is  there- 
fore still  under  consideration. 

It  was  then  "  voted  that  Messrs.  Burell,  Woodward,  Per- 
kins, Hubbard  and  Woodbury  be  a  committee  to  consider 
the  necessary  regulations  for  the  government  of  Dart- 
mouth University,  and  the  organization  of  diiferent  colleges 
therein." 

On  this  day  the  trustees  of  the  College  formally  removed 
Judge  Woodward  from  the  office  of  secretary.  On  August 
28,  1816,  the  trustees  of  the  University  appointed  Judge 
Woodward  secretary  and  treasurer  j9ro  tern. 

They  then  voted  that  the  chairman  address  Dr.  Shurtleff 
and  Professor  Adams  notices,  requesting  their  attendance 
on  this  meeting.  This  was  done.  Both  declined  attending, 
upon  the  ground  that  a  quorum  of  the  board  was  not  in 
attendance. 

Forthwith  Messrs.  Brown,  Thompson,  Farrar,  Paine, 
Marsh,  McFarland,  Smith,  and  Payson,  a  majority  of  the 
old  trustees,  formally  refused  to  accept  the  provisions  of 
the  act,  and  expressly  refused  to  act  under  the  same.  Mr. 
Brown  at  once  gave  Governor  Plumer  due  notice  of  their 
action.  The  trustees  of  the  University  thereupon  "voted 
that  Messrs.  Durell,  Hubbard,  and  Woodbury  draft  a 
remonstrance  against  the  proceedings  of  the  above  gentle- 
men . "     A  lengthy  remonstrance  was  at  once  adopted ,  and 


THEIR    PROCEEDINGS.  115 

signed  by  all  the  trustees  in  attendance.  It  concludes  with 
a  "  solemn  protest  against  any  and  ail  resolves,  acts,  trans- 
actions, matters,  and  things  already  done  by"  the  old 
trustees,  "as  illegal  and  of  none  effect,"  and  earnestly 
exhorts  them  *'  forthwith  to  desist  from  all  and  every  act, 
matter,  and  thing  contravening  the  provisions  of  the  act 
aforesaid." 

On  August  29, 1816,  the  board,  among  other  things,  voted 
to  adjourn  until  Tuesday,  September  17,  following.  The 
meeting  of  the  trustees  of  the  University,  owing  to  the  ill- 
ness of  a  single  member,  failed  for  the  want  of  a  quorum. 
The  Board  of  Overseers  adopted  the  following  resolution  :  — 

Resolved  unanimously  as  our  opinion.  That  we  deem  the  meas- 
ures pursued  by  the  aforesaid  trustees  highly  expedient,  wise,  and 
dignified,  and  that  they  meet  the  cordial  and  unquaHfied  approba- 
tion and  sanction  of  the  members  of  the  Board  of  Overseers  now 
present. 

[Signed]       Henry  Dearborn,- 

Benjamin  W.  Crowninshield, 

Paul  Brigham, 

Benja]viin  Greene, 

Elisha  Ticknor, 

Dudley  Chase, 

H.  A.  S.  Dearborn, 

Jajies  T.  Austen, 

Levi  Lincoln,  Jr., 

WiLLIAJM   A.   GrISWOLD, 

Albion  K.  Paris, 
Amos  Twitchell, 
David  L.  Morrill, 
Clement  Storer. 

Judge  Story  was  not  present  in  person,  but  his  confiden- 
tial friend  Crowninshield  was. 


CHAPTER    Y.  — CoNTimiED. 

Judge  Woodward  had  been  the  secretary  and  long  the 
treasurer  of  the  College.  There  was  no  whisper  against 
him,  but  he  was  the  firm  friend  of  Wheelock.  On  August 
27,  1816,  he  was  removed  from  the  office  of  secretary,  and 
on  September  27,  1816,  from  that  of  treasurer,  and  Mills 
Olcott  put  in  his  place. 

We  copy  the  following  votes,  etc.,  from  the  certificate  of 
Mr.  Olcott :  — 

At  the  annual  meeting  of  the  Trustees  of  Dartmouth  College, 
holden  on  the  Tuesday  preceding  the  fourth  Wednesday  in  August, 
being  Aug.  27th,  A.  D.  1816. 

Whereas,  William  H.  Woodward,  Esq.,  heretofore  Secretary 
of  the  Trustees  of  Dartmouth  College,  has  when  repeatedly  re- 
quested thereto  by  the  President  refused  to  attend  the  meeting  of 
this  Board,  or  to  furnish  the  records  for  their  use  ;  therefore, 

Resolved^  That  it  is  the  pleasure  of  this  Board  that  the  sd. 
Woodward  hold  the  sd.  office  of  Secretary  to  sd.  Trustees  no 
longer  &,  that  the  same  is  hereby  considered  vacant,  &  the  said 
Trustees  will  proceed  to  fill  the  vacancy.  Voted  &  chose  by 
ballot  unanimously,  Mills  Olcott,  Esq.,  Secretary  of  the  Trustees 
or  Dartmouth  College. 

Mills  Olcott  appeared  &  accepted  the  office  of  Secretary  of 
this  Board. 

Thomas  W.  Thompson,  Secy,  pro  tern. 

Voted.,  That  Mills  Olcott,  the  present  Secretaiy  of  the  Trustees 
of  Dartmouth  College,  be  directed  to  call  on  the  Hon.  William  H. 
Woodward,  their  late  Secretary,  &  demand  of  him  the  original 
charter,  records,  files  &  other  papers  belonging  to  sd.  office  of 
Secretary,  and  also  the  former  seal  of  the  corporation  now  in  his 
possession. 

(116) 


PROCEEDINGS    OF    THE    OLD    TRUSTEES.  117 

Voted,  That  Mills  Olcott,  Secretary  to  the  Trustees  of  Dart- 
mouth College,  be  empowered  to  take  such  legal  measures  to 
obtain  the  seal,  charter,  files  &  other  papers  belonging  to  the  office 
of  Secretary  (in  case  of  the  refusal  of  the  Hon.  Wm.  H.  Wood- 
ward, their  late  Secretary,  to  deliver  the  same  on  request)  as  may 
be  deemed  advisable. 

Voted,  That  Mills  Olcott  be  authorized  to  appear  for  and  act 
as  agent  to  the  Trustees  of  Dartmouth  College  in  any  actions 
hereafter  to  be  brought  in  favor  of  or  against  sd.  Trustees. 

At  a  meeting  of  the  Trustees  of  Dartmouth  College,  holden  by 
adjournment  at  sd.  College  on  the  27.  day  of  Sept.  A.  D.  1816, 
being  the  last  Friday  of  sd.  month  of  Sept. — 

Voted,  That  Mills  Olcott,  Esq.,  the  present  Treasurer  of  the 
Trustees  of  Dartmouth  College,  make  a  legal  demand  of  Wm.  H. 
Woodward,  Esq.,  their  former  Treasurer,  of  the  property  &  evi- 
dences of  property  in  his  hands  belonging  to  sd.  Trustees. 

A  copy  of  the  foregoing,  duly  certified,  was  furnished  by 
Mr.  Olcott  to  Judge  Woodward.  On  the  back  of  the  copy 
is  the  following  certificate,  signed  by  "  Wm.  H.  Wood- 
ward" :  — 

I  hereby  certify  that  Mills  Olcott  this  7.  day  of  October,  A. 
D.  1816,  called  on  me  at  my  dwelling-house  in  Hanover  &  deliv- 
ered to  me  the  certificates  on  the  opposite  side,  &  demanded  of 
me  the  original  charter,  records,  files  &  other  papers  (which  he 
claimed  as)  belonging  to  the  office  of  Secretary  of  the  Trustees  of 
Dartmouth  College,  &  also  (what  he  styled)  the  former  seal  of  the 
corporation,  and  that  he  also  demanded  of  me  the  property  & 
evidences  of  property  supposed  to  be  in  my  hands  as  Treasurer  & 
(which  he  claimed  as)  belonging  to  sd.  Trustees,  all  of  which  I 
declined  to  deliver  to  him  —  [because  I  entertained  doubts  of  his 
authority  to  demand  and  receive  the  same  of  me ;  &  because  I 
was  not  satisfied  of  the  legal  corporate  existence  of  such  a  board 
of  trustees  as  those  under  whom  he  claims  to  have  derived  his 
authority,  nor  of  the  legality  of  their  meetings  or  proceedings  — 
more  especially  as  they  have  refused  to  accede  or  submit  to  the 
act  of  the  Legislature  passed  June  27th  last,  entitled  an  act  to 


118  DARTMOUTH  COLLEGE  CAUSES. 

amend  the  charter  &  enlarge  &  improve  the  corporation  of  Dart- 
mouth College ;  claiming  myself  however  to  hold  the  books  & 
papers  &  whatever  else  I  am  possessed  of  as  Secy.  &  Treas.  of 
the  said  corporation,  only  for  the  use  of  the  rightful  trustees,  & 
subject  to  their  orders ;  my  present  impressions  of  duty  leading 
me  to  respect  &  submit  to  the  provisions  of  the  act  aforesaid] . 

The  clauses  in  brackets  are  apparently  in  the  handwriting 
of  Judge  Woodward,  and  the  remainder  of  the  certificate  in 
that  of  Mr.  Olcott. 

The  action  was  trover,  and  the  point  was  taken  by  the 
counsel  for  the  defendant  that  upon  such  a  demand  and  re- 
fusal the  form  of  action  was  misconceived. 

The  chief  justice  intimated  that  this  objection  was  well 
taken,  but  it  was  waived  in  the  argument  at  Exeter  by  coun- 
sel, as  other  points  were  waived  by  counsel  on  the  other 
side. 

The  adjournment  was  mainly  for  the  purpose  of  devising 
measures  for  filling  the  vacancies  in  the  Board  of  Trustees. 

The  original  act  provided  ' '  that  the  Governor  and  Council 
are  hereby  authorized  to  fill  all  vacancies  in  the  Board  of 
Overseers,  whether  the  same  be  original  vacancies  or  are 
occasioned  by  the  death,  resignation,  or  removal  of  any 
member  ;  and  the  Governor  and  Council  in  like  manner  shall 
by  appointments,  as  soon  as  may  be,  com^Dlete  the  present 
Board  of  Trustees  to  the  number  of  twenty-one,  as  provided 
for  by  this  act ;  and  shall  have  power  also  to  fill  all  vacan- 
cies that  may  occur  previous  to  or  during  the  first  meeting 
of  the  said  Board  of  Trustees." 

On  September  19,  1816,  the  governor  and  council,  then 
m  session  at  Hanover,  made  the  following  application  to 
the  judges  of  the  Superior  Court  for  their  opinion  :  — 

The  undersigned  respectfully  request  the  opinion  of  the 
hon^'*^  the  Justices  of  the  Superior  Court  of  Judicature,  upon  the 
following  questions :  — 


OPINION    OF    THE    JUDGES.  119 

First.  Has  the  Legislature  of  this  State  authority  to  amend  the 
charters  or  acts  of  incorporation  of  literary  corporations,  bj' 
increasing  the  number  of  Trustees,  adding  Boards  of  Overseers 
and  prescribing  modes  of  visitation  in  cases  where  such  corpo- 
rations were  established  by  the  present  Government  of  this  State, 
or  by  John  Wentworth  formerly  Governor  of  the  province  of 
New  Hampshire,  exercising  authority  in  the  name  of  the  British 
king? 

Second.  Have  the  Governor  and  Council  of  this  State  in  virtue 
of  an  act  passed  June  27th,  1816,  entitled  "  An  act  to  amend  the 
charter,  and  enlarge  and  improve  the  corporation  of  Dartmouth 
College,"  authority  to  fill  any  vacancies  in  the  Board  of  Trustees 
or  Overseers  happening  since  the  26th  of  August  last,  there  not 
having  been  on  that  day  a  meeting  of  a  quorum  of  either  of  said 
Boards  as  prescribed  by  said  act. 

William  Plumer, 
Elijah  Hall, 
Samuel  Quarles, 
B.  Pierce. 

The  following  answer  was  received  and  recorded  Novem- 
ber 25,  1816,  viz.  :  — 

To  his  Excellency  the  Governor  and  the  Honorable  Council  of  the 
State  of  New  Hampshire. 

The  undersigned,  Justices  of  the  Superior  Court  of  Judicature, 
have  considered  the  two  questions  proposed  by  your  Excellency 
and  Honors  for  their  opinion. 

As  to  the  first  question,  "  whether  the  Legislature  of  this  State 
has  authority  to  amend  the  charters  or  acts  of  incorporation  of 
literary  corporations,  b}""  increasing  the  number  of  Trustees,  adding 
Boards  of  Overseers  and  prescribing  modes  of  visitation,"  we 
have  examined  the  Constitution  of  this  State  and  also  the  Consti- 
tution of  the  United  States,  and  have  not  been  able  even  to  con- 
jecture any  ground  upon  which  such  an  authority  in  the  Leg- 
islature can  be  questioned,  unless  it  be  that  such  alterations  if 
made  without  the  consent  of  the  corporation  may  possibly  be 
construed  to  be  a  violation  of  private  vested  rights,  which  are 
protected  by  those  Constitutions.  Not  being  able  to  see  any 
other  objection  to  the  exercise  of  such  an  authority,  it  instantly 


120  DARTMOUTH  COLLEGE  CAUSES. 

occurs  to  US  that  those  who  may  deem  their  rights  infringed  by 
such  alterations  may  have  recourse  to  our  courts  for  the  protec- 
tion of  their  supposed  privileges,  and  a  doubt  arose  in  our  minds 
as  to  the  propriety  of  our  forming  an  opinion  upon  a  question 
supposed  to  affect  private  rights  alone,  till  those  who  may  think 
themselves  interested  in  the  question,  have  had  an  opportunity  to 
be  heard.  This  doubt  led  us  again  to  an  examination  of  the  Con- 
stitution, and  upon  the  most  mature  reflection  we  are  inclined 
to  believe  that  the  Constitution  of  this  State  did  not  contemplate 
that  the  opinion  of  the  Justices  of  the  Superior  Court  should  be 
required  upon  a  mere  question  of  right  between  the  Legislature 
and  individuals,  but  upon  important  questions  of  a  nature  alto- 
gether public.  Your  Excellency  and  Honors  will  at  once  perceive 
the  reason  and  utility  of  this  distinction,  when  it  is  considered 
how  very  important  it  is  that  to  the  decision  of  every  question  of 
a  new  impression,  involving  private  rights,  we  should  not  only  in 
fact  come,  but  that  those  who  are  interested  should  have  a  rea- 
sonable confidence  that  we  come,  with  minds  entirely  unshackled 
by  preconceived  opinions. 

WE  have  therefore  thought  it  our  duty  respectfully  to  request 
your  excellency  and  your  Honors  to  excuse  us  from  expressing  any 
opinion  upon  the  first  question  proposed  to  us.  Indeed,  we  have 
thought  it  our  duty  not  to  form  any  opinion,  and  we  trust  that  no 
inference  will  be  drawn  from  anything  here  said  that  our  opinions 
incline  to  the  one  side  or  the  other  of  the  question  proposed. 

We  have  duly  examined  the  second  question,  viz.,  "Have  the 
Governor  &  Council  of  this  State,  by  virtue  of  the  act  of  June 
27,  1816,  authority  to  fill  any  vacancies  in  the  Board  of  Trustees 
and  Overseers  happening  since  the  26t.  of  August,  1816,  there  not 
having  been  on  that  day  a  meeting  of  a  quorum  of  either  of  said 
boards  as  prescribed  by  said  act  ? ' '  and  we  are  of  opinion  that  the 
authority  of  the  Governor  and  Council  to  fill  vacancies  in  the 
Board  of  Overseers  is  general,  and  extends  to  all  vacancies  which 
may  already  have  occurred,  or  which  may  hereafter  occur.  But 
the  act  having  given  to  the  Governor  and  Council  power  to  fill 
only  such  vacancies  in  the  Board  of  Trustees  as  should  occur  pre- 
vious to  or  during  their  first  meeting,  and  the  26th  of  August 
having  been  fixed  by  law  as  the  time  of  the  first  meeting,  and  no 
legal  meeting  having  been  held  at  that  time,  we  are  of  opinion  that 


MESSAGE    OF    GOVEKNOU    PLUMER.  121' 

the  Governor  and  Council  have  not  authority  to  fill  vacancies  in 
the  Board  of  Trustees  which  may  have  occurred  since  the  26tli  of 
August  last. 

Wm.  M.  ElCHABDSOIf, 

SAivruEL  Bell. 

Governor  Plumer  communicated  this  answer,  in  a  special 
message,  to  the  Legislatm'e,  on  December  5,  1816. 

In  his  message  to  the  Legislature,  on  November  20,  1816, 
Governor  Plumer  says  :  — 

"In  obedience  to  the  law,  I  summoned  the  trustees  and  over- 
seers of  Dartmouth  University  to  meet  at  Hanover  on  the  26th  of 
August  last,  the  time  assigned  by  the  Legislature  for  their  first 
meeting.  In  compliance  with  this  request,  a  considerable  number 
of  respectable  gentlemen  of  distinguished  character  and  standing 
in  society,  from  Massachusetts,  Vermont,  Maine,  and  this  State, 
met  in  that  town.  Thirteen  members  of  the  Board  of  Overseers 
assembled  on  that  day,  and  on  the  next  fourteen  were  present, 
but  they  wanted  one  more  to  make  a  quorum.  Of  the  Board  of 
Trustees,  on  the  same  26th  of  August,  nine  attended,  &  the  next 
day  ten,  but  they  also  wanted  one  to  make  a  quorum.  Although 
I  had  previous  to  this  meeting  duly  summoned  the  trustees,  who 
were  appointed  under  the  authority  of  the  royal  charter,  to  attend, 
yet  as  only  one  of  them  attended,  and  as  there  were  then  nine 
others  in  Hanover  on  the  26th  of  August,  I  again  addressed  a  note 
to  each  of  them  individually,  informing  them  of  the  hour  and  place 
of  meeting,  but  neither  of  the  nine  attended  on  that  day,  or  re- 
turned any  answer  to  my  request.  Two  days  after  they  declared 
that  the  law  of  this  State,  passed  the  27th  June,  1816,  to  amend 
the  charter  and  enlarge  the  corporation  of  Dartmouth  College, 
was  in  point  of  precedent  and  principle  dangerous  to  the  best  in- 
terests of  society ;  that  it  subjected  the  college  to  the  arbitrary 
will  and  pleasure  of  the  Legislature ;  that  it  contained  palpable 
violation  of  their  rights ;  was  unconstitutional ;  and  that  they 
would  not  recognize  or  act  under  its  authority.  A  copy  of  the 
proceedings  of  the  overseers  and  trustees  acting  under  authority 
of  the  law,  and  of  the  trustees  opposed  to  it,  so  far  as  they  have 
come  to  my  knowledge,  I  will  lay  before  you  for  your  consider- 
ation. 

"There   not  being  a  quorum  of  either   trustees  or  overseers 


122  DARTMOUTH  COLLEGE  CAUSES. 

assembled  on  the  26  th  of  August,  and  the  statute  giving  no 
authority  for  a  less  number  to  adjourn  or  power  to  call  another 
meeting,  no  further  proceedings  have  been  had. 

"It  is  an  important  question,  and  merits  your  serious  consid- 
eration, whether  a  law  passed  and  approved  by  all  the  constituted 
authorities  of  the  State  shall  be  carried  into  effect ;  or  whether  a 
few  individuals^  not  vested  with  any  judicial  authority,  shall  be 
permitted  to  declare  your  statutes  dangerous  and  arbitrary,  uncon- 
stitutional and  void.  Whether  a  miywrity  of  the  trustees  of  a 
literary  institution,  formed  for  the  education  of  your  children, 
shall  be  encouraged  to  inculcate  the  doctrine  of  resistance  to  the 
law,  and  their  example  tolerated,  in  disseminating  principles  of  in- 
subordination and  rebellion  against  government. 

"  Believing  you  cannot  doubt  the  course  proper  to  be  adopted 
on  this  occasion,  permit  me  to  recommend  the  passage  of  a  bill  to 
amend  the  law  respecting  Dartmouth  University :  Give  authority 
to  some  person  to  call  a  new  meeting  of  trustees  and  overseers ; 
reduce  the  number  necessary  to  form  a  quorum  in  each  board ; 
authorize  those  who  may  hereafter  meet,  to  adjourn  from  time  to 
time  till  a  quorum  shall  assemble ;  give  each  of  the  boards  the 
same  authority  to  transact  business  at  their  first,  as  they  have  at 
their  annual  meeting ;  and,  to  remove  all  doubts,  give  power  to  the 
executive  to  fill  up  vacancies  that  have  or  hereafter  may  happen 
in  the  Board  of  Trustees,  and  make  such  other  provisions  as  will 
enable  the  boards  to  carry  the  law  into  effect  and  render  the  in- 
stitution useful  to  the  public." 

Liberal  and  tolerant  as  he  vp^as  in  religious  matters,  and  in 
the  appointment  of  officers  of  the  University,  as  we  have 
already  seen,  he  was  equally  so  in  other  appointments. 

The  council  consisted  of  five  members, — three  Eepub- 
licans  and  two  Federalists,  each  having  one  vote.  Seventeen 
judges  were  appointed,  —  ten  Eepublicans  and  seven  decided 
Federalists.  Of  the  latter,  Judge  Woodward  accepted. 
All,  or  nearly  all  the  others,  some  much  against  their  own 
inclination,  under  a  species  of  moral  duress,  declined ; 
Webster,  Thompson,  and  other  leading  Federalists,  always 
excepting  Mason,  having  for  party  purposes  thrown  their 
great  influence  against  their  acceptance. 


FEDERALISTS    DECLINE    APPOINTMENTS.  123 

The  hishest  court  of  the  State  was  to  consist  of  three 
judges.  Oil  July  1,  1816,  the  governor  named  for  that 
bench  Mason  for  chief  justice,  and  William  M.  Eichardson 
and  Samuel  Bell  for  associate  justices.  Richardson  was 
confirmed  unammously.  The  Republican  councillors  nomi- 
nated Bell,  and  the  Federalists  opposed  him  on  account  of 
the  transactions  w^hich  culminated  in  the  suit  BuUard  v. 
Bell ;  but  he  was  confirmed.  The  majority  of  the  council, 
in  retaliation  for  the  conduct  of  the  Federalists  towards 
Bell  at  that  time,  failed  to  confirm  Mason.  The  gov- 
ernor thereupon  nominated  George  B.  Upham,  an  eminent 
Federalist,  who  declined  for  the  reasons  already  given. 
Richardson  in  the  meantime  had  become  chief  justice.  The 
governor  having  brought  a  majority  of  the  council  to  his 
way  of  thinking,  and  being  exceedingly  anxious  that  Mason 
should  be  placed  at  the  head  of  the  constitutional  court, 
Richardson  voluntarily  proposed  to  resign  that  place  if  it 
could  be  conferred  upon  Mason,  and  to  take  his  seat  by 
his  side  as  an  associate. 

On  August  7,  1816,  the  governor  wrote  Mr.  Mason  as 
follows  :  ' '  Permit  me  to  inquire  if  you  are  appointed  chief 
justice  of  that  court  will  you  accept  the  office  ?  It  has  long 
been  my  desire  that  you  should  have  that  office,  and  I  think 
it  will  be  ofi'ered  to  you  provided  I  have  assurance  you  will 
accept  it.  It  is  an  office  worthy  your  ambition,  and  one  I 
hope  you  will  hold  till  you  are  removed  to  the  bench  of 
Supreme  Court  of  the  United  States . ' ' 

On  August  18,  1816,  Mason  declined  the  office,  on  the 
ground,  first,  "  that  the  salary  was  not  a  reasonable  com- 
pensation;"  and,  second,  that  the  law  required  all  the 
judges  to  attend  each  trial  term,  when,  as  he  thought,  one 
was  sufficient;  —  adding,  "After  thus  stating  the  reasons 
which  prevent  my  complying  with  your  proposal,  I  trust  it 
is  unnecessary  to  add,  that  political  considerations,  which  in 
these  times  are  often  supposed  to  determine  almost  every- 
thing, have  with  me  on  this  subject  no  influence," 


124  DARTMOUTH  COLLEGE  CAUSES. 

In  relation  to  these  appointments,  Governor  Plumer,  in 
his  message  of  November  20,  1816,  from  which  we  have 
already  quoted,  said  :  — 

"  In  making,  diu-ing  the  recess  of  the  Legislature,  the  appoint- 
ment of  judges  of  the  Superior  Court  of  Judicature,  and  courts 
of  Common  Pleas,  it  was  my  sole  object  to  select  men  of  talent, 
of  legal  information,  strict  integrity,  and  such  as  were  best  quali- 
fied for  those  important  offices,  with  a  view  to  exclude,  as  far  as 
practicable,  the  spirit  of  party  from  the  temple  of  justice  ;  and 
to  inspire  a  general  confidence  in  our  courts  of  law,  in  which 
every  citizen  has  a  deep  interest,  I  selected  gentlemen  of  differ- 
ent political  principles.  And  I  regret  that  a  number  of  those, 
who  were  thus  appointed,  declined  the  appointments.  Whatever 
effect  this  course  of  proceeding  may  have  on  public  opinion,  I 
shall  always  enjoy  the  consolation  that  on  my  part  it  originated 
from  a  pure  motive,  that  of  the  public  good." 

In  consequence  of  this  course  of  action  on  the  part  of  the 
Federalists,  on  December  9,  1816,  Levi  Woodbury  was 
appointed  to  the  bench  in  place  of  Upham. 

On  December  19,  1816,  John  Harris,  Moses  Eastman, 
and  Ichabod  Bartlett  were  appointed  trustees  ;  and  on  the 
same  day,  Arthur  Livermore,  William  Badger,  Judah  Dana, 
Jadutham  Wilcox,  Ezra  Bartlett,  Stephen  P.  Webster,  all 
of  New  Hampshire,  and  William  Bently,  of  Salem,  Massa- 
chusetts, were  appointed  overseers. 

The  old  trustees,  in  their  memorial  to  the  Legislature,  in 
1804,  asserted  that  "  they  had  no  other  interest  than  the 
members  of  the  Legislature  themselves."  In  their  vindica- 
tion they  state  their  own  position  in  statmg  that  of  the 
trustees  of  Kimball  Union  Academy.  They  say:  "The 
Trustees  of  Union  Academy  have  no  private  interest,  either 
associated  or  individual,  in  the  funds,  nor  even  pay  for 
their  services  or  expenses.  They  are  mere  stake-holders, 
like  other  corporations  of  this  kind,  for  the  public." 

Probably  for  this  reason,  though  the  leading  trustees  had 


POSITION    OF    THE    OLD    TRUSTEES.  125 

ample  wealth,  while  the  College  practically  had  none,  the}'- 
took  no  steps  1)}^  spending  their  own  money  to  test  these 
acts.  But  when  they  were  in  session  in  1816,  John  B. 
"Wheeler,  of  Orford,  a  farmer  and  country  merchant,  said  to 
one  of  the  professors,  an  old  friend  :  "■  If  the  trustees  intend 
to  test  their  rights  by  a  suit  at  law,  and  should  w^ant  means, 
I  have  a  thousand  dollars  at  their  command."  The  offer 
w^as  transmitted  to  and  accepted  by  the  board.  Marsh 
termed  it  "a  light  breaking  upon  blank  darkness."  The 
late  Professor  Adams  said:  "If  it  had  not  been  for  this 
unsolicited,  unsuspected,  unthought-of  aid,  the  great  case 
of  Dartmouth  College  would  not  have  been  commenced." 
Adams  was  the  one  to  wdiom  Thompson  wrote  his  famous 
letter  ( already  referred  to)  relating  to  his  long  conversation 
with  Webster,  dated  July  13,  1815.  Henceforth  the  strug- 
gle was  between  the  College  and  the  University,  or  virtually 
between  the  old  trustees  and  the  State. 

In  his  letter  of  January  3,  1817,  to  Judge  Farrar,  Mr. 
Bro\\ai  says  :  ' '  We  have  not  yet  seen  any  authentic  copy 
of  the  act  of  our  Legislature  by  which  we  are  to  be  effec- 
tually put  doT^^l.  A  copy,  probably  correct,  has  however 
been  published  in  the  American.  According  to  this,  it  is 
enacted,  that  whoever  shall  presume  to  exercise  any  office 
in  D.  U.  except  in  subordination  to  its  Trustees,  under  any 
name  or  pretext  whatsoever,  shall  forfeit  and  pay  for  every 
offence  the  sum  of  $500,  one-half  to  the  complainant  &  the 
other  half  to  the  U.  I  presume  you  will  soon  have  an 
opportunity  to  see  the  act. 

' '  Now  what  shall  we  do  ?  One  of  these  four  courses  must 
be  taken.  We  must  either  keep  possession  &  go  on  and 
instruct  as  usual,  without  any  regard  to  the  law,  or  with- 
dra^ving  from  the  Coll.  edifice  &  all  the  Coll.  property  con- 
tinue to  instruct  as  the  officers  of  D.  Coll.,  or  relinquishing 
this  name  for  the  present,  collect  as  many  students  as  wall 
join  us  and  instruct  them  as  private  but  associated  individ- 
uals ; —  or  else  we  must  give  up  all    and   disperse.     Will 


12G  DARTMOUTH    COLLEGE    CAUSES. 

you  give  us  your  opiniou  what  may  be  our  dut}^,  or  what 
expedient,  as  soon  as  convenient.  Particularly,  will  you 
give  us  your  opinion,  whether,  supposing  this  oppressive 
act  to  be  judged  constitutional  we  should  be  liable  to  the 
line,  if  we  instruct  as  the  officers  of  D.  Coll.,  relinquishing, 
however,  the  Coll.  buildings,  the  Library,  apparatus,  &c. 

' '  Whatever  may  become  of  us  I  trust  due  advantage  may 
be  taken  of  the  Act,  by  which  we  are  to  be  placed  out  of 
the  protection  of  law  as  well  as  of  the  other  acts  of  our  Gov. 
&  his  Legislature. 

"  If  we  resolve  to  persevere  in  our  duties  as  the  officers  of 
D.  Coll.,  &  to  meet  the  consequences,  can  nothing  be  done 
for  our  help  in  Portsmouth?  We  must  have  substantial  aid, 
or  it  will  be  impossible  for  us  to  go  on. 

"  In  your  reply  to  this,  please  to  give  us  all  the  advice 
which  you  think  may  be  useful." 

In  his  letter  to  Farrar,  dated  Washington,  January  21, 
1817,  Thompson  says :  "The  officers  at  College  are  very 
desirous  to  know  the  opinion  of  their  friends  as  to  the 
course  they  ought  to  take  at  the  approaching  crisis.  I 
have  advised  Pres."  Bro^vn  to  call  the  Trustees  together 
at  Hanover,  about  the  4tli  of  Feby.,  to  compare  opinions 
&  feelings  &  advise  such  measures  as  the  occasion  demands. 
I  have  to  request  3^ou  to  write  him  as  soon  as  prac- 
ticable, &  give  him  your  opinion  and  the  opinion  of  our 
friends  round  you  as  to  the  measures  and  conduct  that 
ought  to  be  pursued.  I  have  taken  it  into  my  head  to 
^vi'ite  to  several  gentlemen  in  diiferent  parts  of  the  State  to 
do  the  same  thing.  I  think  it  desirable  to  collect  opinions 
of  respectable  persons,  believing  that  a  knowledge  of  them 
may  be  beneficial.  I  ^vish  you  to  write  him  particularly  on 
the  following  questions  :  — 

*  Is  it  expedient  under  existing  circumstances   for  the 
Trustees  and  Officers  to  abandon  their  trust  altos-ether? 

"Is  it  expedient  to  amalgamate  wdth  the  new  order  of 
thin2fs  ? 


TRUSTEES    HESITATE CONSULT    COUNSEL.  127 

"Is  it  still  expedient  to  adhere  with  firmness  to  charter 
rights  and  abide  the  consequences? 

"Is  it  expedient  for  the  Officers  to  attend  the  new 
boards  if  invited  so  to  do  ? 

"  Can  any  course  be  pursued  which  will  be  neither  an 
abandonment  of  trust  nor  a  hindrance  to  the  operations  of 
the  University  within  the  meaning  of  the  Penal  Act? 

"  In  case  of  an  adherence  to  charter  rights  &  prosecutions 
against  us  should  be  the  consequence,  is  there  any  ground 
to  ex]^)ect  pecuniary  assistance,  &  to  what  extent? 

"  Does  the  subject  excite  any  more  interest  amongst  your 
folks  than  it  did? 

' '  I  have  informed  President  Brown  that  I  should  request 
you  to  wi'ite  him  after  conversing  with  your  friends,  par- 
ticularly Mr.  Putnam  &  Mr.  Burroughs,  and  he  will  expect 
to  hear  from  you." 

Olcott,  in  his  letter  of  January  22,  1817,  to  Judge  Smith, 
says  :  "I  have  to  acknowledge  the  recpt.  of  your  favor  of 
the  4th  inst.,  which  did  not  reach  me  until  the  18th.  I  had 
written  3^ou  a  few  weeks  since  on  college  concerns,  to  which 
receiving  no  reply,  &  doubting  if  there  may  not  have  been 
a  miscarriage  of  the  letter,  I  am  requested  to  address  you 
again  on  the  same  subject,  &  that  there  may  be  no  delay, 
to  send  a  special  messenger  from  Concord,  who  will  bring 
back  such  communication  as  you  may  wish,  in  reference  not 
only  to  my  letter,  but  that  of  President  Brown  also,  if  you 
have  had  leisure  to  attend  to  both. 

"  The  object  of  my  letter  was  to  obtain  your  opinion  as 
to  the  best  mode  of  instituting  a  suit  in  favor  of  the  trustees 
of  D.  Coll.  aot.  Judo-e  Woodward  for  refusal  to  deliver 
them  the  property,  records,  &c.,  of  the  Coll. 

"The  enclosed  letter  from  Mr.  Marsh  to  Prest.  B.  will 
show  you  what  is  desired,  together  with  his  views,  and  will 
render  it  unnecessary  to  enlarge  upon  the  subject,  —  and  I 
will  thank  you  to  let  the  enclosed  come  back  to  me  with  the 


128  DARTiVIOUTH    COLLEGE    CAUSES. 

package  you  may  forward  by  the  bearer,  who  will  wait  your 
convenience  as  to  time." 

This  letter  was  received  by  Judge  Smith  on  January  26, 
1817,  on  which  day  he  replied  to  Mr.  Olcott  in  substance  as 
follows:  "  A  young  man  from  Concord  (express)  has  this 
moment  handed  me  your  favor  of  the  22d. 

"  Your  letter  of  27  Dec.  came  to  hand  9  Jany.  On  the 
11th  I  wrote  you  an  answer,  which  I  presume  after  a  copy 
taken  in  the  post-offices,  you  have  reed.  Till  the  receipt 
of  your  letter  I  had  not  heard  of  any  intention  of  the  trus- 
tees to  institute  any  suits. 

' '  Your  letter  mentioned  that  a  suit  was  to  be  commenced 
agt.  Judge  W.  &c.,  &  wished  for  advice  as  to  the  policy  of 
such  an  action,  &  the  manner  of  prosecuting,  &c.,  stating 
that  you  had  opportunities  of  consulting  with  those  of  the 
trustees  best  al)le  to  give  directions,  &c.  I  had  not  then, 
nor  have  I  yet  seen  any  of  the  acts  of  the  last  session. 
Under  the  circumstances  there  was  little  for  me  to  say.  I 
could  only  state  that  I  saw  no  well  founded  objection  to  the 
course  proposed. 

"  It  seemed  to  me  proper  by  all  means  if  any  suit  was 
brought,  not  to  pass  by  the  State  courts  for  reasons  which 
will  readily  occur  to  you.  I  had  not,  nor  have  I  yet, 
ingenuity  enough  to  think  of  any  other  for77i  of  actions  but 
trover  for  the  books,  &c.,  &  assumpsit  for  money  in  the 
name  of  the  corporation.  I  do  not  now  see  any  more  diffi- 
culty on  a  writ  of  error  in  trover  than  in  trespass,  though 
in  the  former  case  a  bill  of  exceptions  may  be  necessary, 
])ut  profess  not  to  have  considered  the  subject  with  any 
attention, 

''  I  hope  from  ^^our  known  candor,  exemption  from  the 
suspicion  of  '  not  entering  much  into  the  feelings  &  views  of 
the  trustees  as  they  relate  to  the  interests  of  the  institution 
and  welfare  of  society.' 

' '  There  will  doubtless  be  feelings  enough  without  my 


VIEWS    OF    JUDGE    SMITH.  129 

adding  anything  to  the  mass.  I  can  besides  hardly  persuade 
myself  that  feelings  make  any  part  of  the  qualifications  of 
an  Atty. 

'*  The  parties  commonly  have  enough  for  the  cause.  I 
have  always  supposed  that  my  zeal  has  been  more  manifest 
than  legal  talents  or  prudence.  I  shall  be  happy  to  find 
myself  mistaken, 

"  Neither  your  letter  nor  that  of  IVIi'.  Marsh  seems  to  call 
for  any  addition  to  my  former  short  letter.  It  will  hardly 
l)e  supposed  that  I  should  have  made  up  any  opinion  on  the 
various  matters  at  issue  between  the  Coll.  and  University, 
and  I  cannot  think  of  detaining  the  bearer  till  I  have 
done  so. 

"Indeed,  at  this  time,  my  whole  attention  is  engaged  in 
the  business  at  Dover  &  Portsmo.  terms,  &c.,  which  com- 
mence 10  days  hence. 

"I  can  see  no  use  in  sending  crude  and  undigested 
opinions,  which  must  do  hurt  if  any  reliance  is  placed  on 
them  &  can  do  no  good.  It  will  be  easy  to  obtain  abun- 
dance of  such  when  they  are  ivanted. 

"  Mr.  M.  seems  to  think  the  best  form  of  action  would  be 
account,  but  understands  it  is  not  in  use  in  this  State.  The 
common-law  action  of  account  is  in  use  in  this  State,  but 
is  as  tedious  as  a  chancery  suit,  and  I  don't  see  its  peculiar 
advantages  in  relation  to  error.  Trespass  seems  to  me 
out  of  the  question  at  present.  The  pleadings  are  as  at 
common  law. 

' '  You  will  not  understand  me  as  having  formed  any  opinion 
as  to  the  policy  of  instituting  any  suit.  I  profess  to  be 
a  very  incompetent  judge  on  that  subject,  but  if  a  suit  had 
been  Avisely  determined  on  I  do  not  think  from  what  I  have 
heard  of  the  acts  of  the  last  session  that  any  reason  exists 
for  abandoning  that  intention . ' ' 

Judge  Smith,  in  his  letter  to  Mr.  Brown,  of  February  12, 
1817,  says  :  "I  am  just  returned  from  Dover  Court.  Your 
letter  of  the  16th  ult.  reached  this  place  in  my  absence.     I 


130  DARTMOUTH  COLLEGE  CAUSES. 

have  read  over  the  act  of  the  last  session  which  you  enclosed. 
The  other  act  of  the  same  session  I  have  not  yet  seen. 

' '  I  would  not  undertake  to  give  any  opinion  as  to  the  true 
construction  of  the  act  in  question.  I  can  adopt  part  at 
least  of  the  language  of  a  great  lawyer  who  when  a  states- 
man applied  for  his  opinion  on  a  point  of  law,  said :  '  If  it 
be  common  law,  I  should  be  ashamed  if  I  could  not  give  you 
a  ready  answer ;  but  if  it  be  statute  law,  I  should  be  equally 
ashamed  if  I  answered  you  immediately.' 

"  There  was  one  Parliament  in  those  days  which  was 
called  parliamentum   indoctum 

*'  The  name  would  suit  most  of  our  Parliaments.  Their 
acts  are  frequently  difficult  to  construe  &  their  legal  mean- 
ing past  finding  out,  tho'  it  may  not  sometimes  be  difficult  to 
guess  at  what  was  intended.  In  the  present  it  was  doubt- 
less the  intention  to  make  penal  the  act  of  assuming  the 
office  of  President,  Trustee,  &c.  of  Dartmouth  University  — 
that  is  to  subject  the  officers  of  the  college  under  the  old 
trustees,  &  the  trustees  themselves,  to  the  penalty  if  they 
13 resume  to  act  after  they  shall  have  been  put  down  by  the 
new  government  of  the  U.  It  was  supposed  the  act  of  June 
session  e:ave  the  Coll.  a  new  name  &  converted  it  into  D,  U. 
The  act  was  passed  to  frighten  the  old  &  and  to  furnish  the 
new  with  weapons — when  the  old  are  removed  they  mil  incur 
the  penalty  by  assuming  to  retain  their  offices  — undertaking 
to  discharge  official  duties  —  impeding  the  lawful,  i.e.  the 
new  officers,  in  the  discharge  of  their  duties.  For  every 
such  act  the  penalty  will  be  incurre  d  in  the  same  manner  as 
a  person  assuming  to  be  sherifi*  is  liable  for  the  service  of 
every  precept. 

'*  This  act  is  predicated  on  the  idea  that  the  act  of  June 
session  is  constitutional.  If  it  be  not  so  then  the  P.,  trus- 
tees, &c.,  of  D.  Coll.  may  continue  to  assume  these  offices 
&  discharge  their  duties. 

"  As  to  the  question  whether  the  officers  of  the  college 
would  be  liable  for  instructing,  &c.,  in  case  they  should  give 


POLICY CONSTITUTIONALITY    OF    ACT.  181 

up  the  buildings  &  other  college  property.  It  seems  to  me 
unnecessary  to  consider  it.  The  act  of  surrendering  the 
property  would  be  a  clear  admission  that  they  had  no  right 
to  retain  it  —  with  it  I  think  they  ought  to  give  up  all 
things  —  the  franchise,  name,  &c.,  which  are  wholly  insig- 
nificant. It  would  be  no  oficnce  under  the  new  act  to 
instruct,  and  it  will  be  as  useful  without  as  with  the  name 
of  D.  C.  If  I  were  one  of  the  trustees,  at  the  same  time  I 
surrendered  the  property  I  would  ask  Governor  P.'s  pardon 
for  my  error  in  having  treated  his  authority  so  ill.  I  have 
no  doubt  he  will  forgive  them. 

"As  to  the  question  of  the  constitutionality  of  the  last 
act,  I  think  it  depends  on  that  of  June,  and  I  suppose  the 
trustees  and  officers  of  the  college  have  all  made  up  their 
minds. 

' '  If  their  confidence  in  the  correctness  of  the  course  they 
have  adopted  remains  unimpaired,  there  is  no  occasion  for 
my  saying  anything  at  this  time.  If  they  begin  to  feel 
doubts  and  think  of  a  compromise,  this  is  a  case  in  which 
the  patient  must  minister  to  himself.     I  never  advise. 

"  I  would  not  advise  to  an  opposition  even  to  the  letter  of 
an  act  of  the  Legislature.  Whether  an  act  of  the  Legisla- 
ture be  constitutional  or  not  depends  on  the  application  of 
general  principles.  It  is  always  (6  Cranch,  128)  a  question 
of  delicacy  &  there  is  room  for  an  honest  diversity  of  opin- 
ion. No  prudent  lawyer  will  be  very  ready  to  hazard  an 
opinion  when  called  on  in  the  course  of  his  professional 
duty  to  maintain  the  affirmative.  He  will  of  course  urge 
such  principles  &  authorities  as  he  thinks  have  a  bearing  on 
the  question.  But  he  will  not  be  very  sanguine  as  to  the 
event  if  he  knows  anything  of  human  nature,  and  especially 
if  he  has  reason  to  believe  that  her  judges  are  dependent  on 
a  party  and  are  indebted  to  that  party  for  their  appoint- 
ments &  perhaps  their  continuance  in  office. 

' '  From  your  letter  I  should  conclude  that  the  Penal  Act 
of  the  last  session  had  produced  the  consequences  which  I 


132  DARTMOUTH  COLLEGE  CAUSES. 

am  confident  it  is  chiefly  intended  to  produce  —  a  timid 
spirit  in  those  on  whom  it  was  calculated  to  operate. 

"  I  write  this  very  hastily,  and  not  under  an  idea  that  it 
will  afford  you  any  assistance.  I  am  in  the  midst  of  my 
winter  engagements  and  can  spare  no  time  for  anything 
else.     It  will,  besides,  not  reach  you  in  season." 

Up  to  the  time  of  the  communications  with  counsel,  etc., 
the  action  of  the  old  trustees  had  been  negative.  The  gov- 
ernor and  council,  armed  with  the  supplementary  acts 
referred  to,  had  summoned  the  trustees  to  meet  in  Concord, 
on  February  4,  1817.  The  purpose  of  that  meeting  was 
well  understood  to  be  to  remove  the  old  trustees  if  they 
failed  to  act,  and  to  put  the  University  in  operation.  The  old 
board  was  thus  compelled  to  act,  but  were  undecided  as  to 
the  course  to  be  taken. 

The  old  board,  controlled  mainly  by  the  positive  will  of 
the  younger  Farrar  and  the  influence  of  Mr.  Brown, 
decided  to  institute  the  suit  against  Judge  Woodward  and 
take  the  consequences. 

The  trustees  convened  in  accordance  with  the  summons, 
and  took  action  as  follows  :  — 

At  a  meeting  of  the  Trustees  of  Dartmouth  University,  con- 
vened by  summons  from  his  Excellency  Governor  Plumer,  at  the 
hall  commonly  called  Mason's  Hall,  over  the  Bank,  at  the  south- 
erly end  of  the  Main  Street,  in  Concord,  in  the  county  of  Rock- 
ingham, on  Tuesday  the  fourth  day  of  February,  A.  D.  1817, 
and  continued  by  adjournment  to  the  seventh  day  of  said  Feb- 
ruary. 

The  committee  appointed  to  prepare  and  report  specifications 
of  charges  against  President  Brown  and  other  trustees,  and  the 
professors  of  Dartmouth  University,  having  reported  the  follow- 
ing articles  against  the  Trustees  hereafter  named,  viz. :  — 

1.  That  Nathaniel  Niles,  Thomas  W.  Thompson,  Timothy  Far- 
rar, Elijah  Paine,  Charles  Marsh,  Asa  McFarland,  John  Smith  and 
Seth  Pa^'son  were  severally,  personally,  and  seasonably  sum- 
moned, as  trustees  of  Dartmouth  University,  to  attend  a  meeting 
of  the  Board  of  Trustees  of  said  institution  to  be  holden  at  Han- 


CHARGES  AGAINST  OLD  TRUSTEES,  ETC.        133 

over,  in  the  county  of  Grafton,  and  State  of  New  Hampshire, 
on  the  26lh  day  of  August,  A.  D.  1816  ;  that  their  attendance 
respective!}'  at  that  time  and  place  was  necessary  to  constitute  a 
quorum  to  transact  the  important  business  of  that  institution, 
then  and  there  jDending,  of  which  they  severally  were  well  know- 
ing, but  the}',  the  said  Nathaniel  Niles,  Thomas  W.  Thompson, 
Timothy  Farrar,  Elijah  Paine,  Charles  Marsh,  Asa  McFarland, 
John  Smith  and  Setli  Payson,  in  violation  of  the  duties  of  their 
respective  offices  of  Trustees  as  aforesaid,  then  and  there  neg- 
lected and  refused  to  attend  said  board  on  the  twenty-sixth  day 
of  August  aforesaid. 

2.  That  on  the  twenty-eighth  day  of  August,  A.  D.  1816,  the 
said  Nathaniel  Niles,  Thomas  "W.  Thompson,  Timothy  Farrar, 
Elijah  Paine,  Charles  Marsh,  Asa  McFarland,  Johu  Smith  and 
Seth  Paj'son,  in  direct  violation  of  their  respective  offices,  sever- 
ally explicitly  declared  that  they  would  not  submit  to  a  law  passed 
by  the  Legislature  of  said  State  on  the  27th  day  of  June,  A.  D. 
1816,  entitled,  "  An  act  to  amend  the  charter,  and  enlarge  and 
improve  the  corporation  of  Dartmouth  College,"  and  severally 
explicitly  refused  to  act  under  the  same. 

3.  That  on  the  twenty-eighth  day  of  August,  A.  D..  1816,  at 
Hanover  aforesaid,  the  said  Nathaniel  Niles,  Thomas  W.  Thomp- 
son, Timothy  Farrar,  Elijah  Paine,  Charles  Marsh,  Asa  McFar- 
land, John  Smith  and  Seth  Payson,  did  undertake  and  assume, 
in  the  name  of  this  board  to  confer  sundry  literary  degrees,  and 
to  manage  and  conduct  the  exercises  of  the  last  commencement 
at  said  Universit}',  without  the  consent,  against  the  will,  and  in 
contempt  of  the  authority  of  this  board,  and  of  the  laws  of  this 
State  relative  thereto. 

4.  That  the  said  Nathaniel  Niles,  Timothy  Farrar,  Elijah 
Paine,  Asa  McFarland,  John  Smith  and  Seth  Payson,  were  sev- 
erally, seasonably  and  duly  summoned  to  attend  a  meeting  of 
said  trustees  holden  at  Concord,  in  the  count}'  of  Rockingham,  in 
said  State  on  the  fourth  day  of  February,  A.  D.  1817,  agree- 
ably to  the  provisions  of  an  act  of  the  Legislature  of  said  State, 
passed  December  18th,  A.  D.  1816,  then  and  there  to  aid  and 
assist  in  transacting  business  that  was  then  and  there  important  to 
be  done  to  promote  the  interest  and  prosperity  of  said  institution, 
and   that   their  presence  and  attendance  respectively  were  then 


134  DARTMOUTH  COLLEGE  CAUSES. 

and  there  necessary,  of  which  they  were  severally  well  knowing, 
but  that  they,  the  said  Nathaniel  Niles,  Timothy  Farrar,  Elijah 
Paine,  Asa  McFarland,  John  Smith  and  Seth  Payson,  in  viola- 
tion of  their  respective  duties,  severally  neglected  and  refused  to 
attend  said  meeting  of  the  trustees,  at  that  time  and  place. 

By  means  of  all  which  the  provisions  of  the  several  acts  afore- 
said have  been  contravened,  and  the  interests  of  said  institution 
injuriously  affected." 

Which  report  being  considered, — 

Voted,  That  the  said  charges  relative  to  the  said  Nathaniel 
Niles,  Timothy  Farrar,  Elijah  Paine,  Asa  McFarland,  John  Smith 
and  Seth  Payson,  be  taken  into  consideration  and  acted  upon  by 
this  board  at  the  hall  commonly  called  Mason's  Hall,  over  the 
Bank,  in  the  southerl}^  end  of  the  Main  Street,  in  Concord,  in  the 
county  of  Rockingham,  on  Saturday  the  22d  day  of  February 
instant,  at  ten  o'clock  in  the  forenoon;  and  that  the  secretary 
cause  the  said  Nathaniel  Niles,  Timothy  Farrar,  Elijah  Paine, 
Asa  McFarland,  John  Smith  and  Seth  Payson,  to  be  severally 
notified  and  cited  to  appear  before  this  board  at  the  said  time  and 
place,  to  answer  to  the  said  charges,  and  to  shew  cause,  if  any 
they  have,  why  they  should  not  severally  be  displaced,  discharged 
and  removed  from  their  respective  offices  as  trustees  of  said  Uni- 
versity, by  causing  a  copy  of  said  charges  and  this  vote  to  be 
delivered  to  each  of  them  respectively,  or  left  at  their  respective 
dwelling-houses,  at  least  eight  days  before  the  said  22d  day  of 
February. 

Similar,  and  in  almost  all  respects  identical,  charges  vrere 
preferred  against  President  Brown. 

The  specifications  against  Professors  Shurtleff  and  Adams 
were,  in  substance, — 

1.  The  same  as  the  third  charge  preferred  against  the 
trustees. 

2.  That  they  had  performed  certain  acts  as  professors  of 
the  institution  without  taking  the  oaths  of  allegiance,  etc. 

3.  That  they  conspired  with  Mr,  Brown  and  others  to 
impede,  obstruct,  and  prevent  the  due  execution  of  the  act, 
and  did  so  to  the  great  injury  of  the  University. 


ANSWER    OF    BROWN    AND    OTHERS.  135 

J) 

4.  That  their  conduct  had  Ijeeii  in  direct  oppovsition  to 
the  law,  hostile  and  injurious  to  the  institution,  tmd  con- 
trary to  the  duties  of  their  respective  offices. 

Messrs.  Brown,  Shurtleff,  and  Adams,  on  February  20, 
1817,  made  the  following  reply  :  — 

We  have  severally  received  a  communication  from  the  Hon- 
orable William  H.  Woodward,  containing  specifications  of  charges 
against  us,  in  our  official  capacities,  and  citing  us  to  appear  before 
your  Excellency  and  your  Honors  "  at  the  hall  commonly  called 
Mason's  Hall,  over  the  Bank,  at  the  southerly  end  of  the  Main 
Street,  in  Concord,  in  the  county  of  Rockingham,  on  Saturday, 
the  twenty-second  day  of  February,  instant,  to  show  cause,  if  any 
we  have,  why  we  should  not  be  displaced,  discharged  and  removed 
from  our  respective  offices  in  Dartmouth  University. ' ' 

In  reply,  we  beg  leave  respectfully  to  state  that  we  have  had 
and  still  have  great  doubts  whether  the  act  of  the  honorable  Legis- 
lature of  this  State,  approved  June  27,  1816,  and  the  act  approved 
December  13,  1816,  under  which  acts  your  Excellency  and  j'^our 
Honors  have  organized  by  the  name  of  the  Trustees  of  Dartmouth 
University,  can  have  validity  and  effect  without  the  acceptance  of 
the  said  acts  by  the  Trustees  of  Dartmouth  College  as  consti- 
tuted by  the  charter  of  1769  ;  and  the  said  trustees  of  Dartmouth 
College  have  not  as  yet  accepted  the  acts  aforesaid,  but  have 
expressly  dechned  accepting  the  act  of  June,  by  a  vote  of  the 
twenty-eighth  day  of  August  last. 

Our  doubts  on  this  subject  have  arisen  not  merely  from  our 
own  understanding  of  the  Constitutions  of  this  State  and  of  the 
United  States,  but  also  from  the  opinion  of  a  very  large  portion 
of  the  community,  comprising,  as  we  believe,  a  great  majority  of 
the  ablest  law  characters  in  this  and  the  neighboring  States. 

These  doubts  have  received  no  small  degree  of  confirmation 
from  the  arguments  and  reasons  adduced  by  the  minority  of  the 
House  of  Representatives  in  their  protest  against  the  act  of  June ; 
from  the  doubts  entertained  on  this  subject  by  his  Excellency, 
the  Governor,  and  the  honorable  Council,  as  implied  in  their 
application  to  the  judges  of  the  Superior  Court  for  their  opinion  ; 
and  from  the  answer  of  the  said  judges,  in  which  they  expressly 
state  that  they  had  not  formed  any  opinion  on  the  question. 


136  DARTMOUTH  COLLEGE  CAUSES. 

With  this  view  of  the  subject,  therefore,  we  deem  it  our  duly 
to  wait  the  result  of  an  appeal  to  the  judicial  tribunals,  which 
has  recently  been  made  by  the  Charter  Trustees.  The  judiciary 
we  consider  an  essential  and  independent  branch  of  the  sover- 
eignty, and  that  branch  which  alone  is  competent  to  a  final 
determination  of  this  question ;  and  to  their  decision,  whenever 
obtained,  and  whatever  it  may  be,  we  shall  readily  conform. 

None  of  the  trustees  or  professors  appeared  to  answer  the 
charges  which  had  been  preferred  against  them.  Mr. 
Brown  as  president  and  trustee,  Mr.  Shurtleff  as  profes- 
sor of  divinity,  Mr.  Adams  as  professor  of  mathematics, 
and  Messrs.  McFarland,  Payson,  and  Farrar  as  trustees, 
were  severally  removed  from  their  respective  offices. 

The  University  was  duly  organized.  Dr.  Wheelock  and 
Judge  Woodward  were  reinstated  ;  but  Professor  Allen,  the 
son-in-law  of  AVheelock,  was  made  acting  president  until 
the  restoration  of  Wheelock' s  health. 

On  February  20,  1817,  Brown,  "  in  behalf  and  at  the 
request  of  the  corporation,"  in  a  public  address,  said  :  — 

"The  trustees  of  Dartmouth  College  consider  it  due  to  the 
pubhck,  and  especially  to  the  members  of  the  institution  and  their 
friends,  explicitly  to  make  known  the  course  they  design  to  pur- 
sue, and  their  opinion  relative  to  the  state  and  prospects  of  the 
college. 

"The  trustees  commenced  the  suit  at  law,  which  is  still  pend- 
ing, from  a  full  conviction  that  this  measure  was  demanded  of 
them  as  the  constituted  guardians  of  this  valuable  seminary,  and 
as  friends  to  the  literature  and  the  literary  establishments  of  theu* 
country ;  and  it  is  their  fixed  determination  to  prosecute  it,  and 
to  avail  themselves  of  every  constitutional  expedient  for  protect- 
ing the  college,  till  the  question  in  controversy  shall  be  tried  on 
its  merits  and  decided  by  the  highest  judicial  tribunal  of  this 
nation. 

"They  have  an  undiminished  confidence  that  the  decision  will 
be  in  favor  of  their  rights,  as  secured  by  the  charter ;  and  that 
they  shall  again  be  put  in  possession  of  the  buildings  and  other 
property,  of  which  they  have  been  deprived.     If,  however,  the 


REMOVAL ADDRESSES .  137 

decision  in  the  last  resort  should  be  against  them,  they  will  no 
longer  claim  a  corporate  existence,  and  Dartmouth  College  will 
have  been  effectually  destroyed.  In  that  event,  the  students, 
should  they  desire  it,  will  be  recommended  to  either  of  the  col- 
leges in  New  England ;  and  from  what  is  known  of  the  opinions 
and  feelings  of  the  trustees  and  instructors  of  these  institutions, 
full  confidence  is  entertained  that  the  students  thus  recommended 
will  be  readily  received.  Nor  is  there  any  ground  for  a  doubt, 
that  the  diplomas  conferred  by  this  corporation,  so  long  as  their 
rights  remain  a  subject  of  judicial  inquiry,  will  be  recognized  as 
valid  by  all  literary  and  professional  bodies  throughout  the  coun- 
try." 

After  their  removal,  the  faculty  published  tlie  following : 

AN  ADDRESS 

OF   THE   EXECUTIVE  OFFICERS  OF  DARTMOUTH  COLLEGE  TO  THE 

PUBLICK. 

As  the  undersigned,  after  the  most  serious  and  mature  con- 
sideration, have  determined  to  retain  the  offices  which  they  re- 
ceived by  the  appointment  of  Trustees  of  Dartmouth  College,  and 
not  voluntarily  to  surrender  at  present  any  property  committed  to 
them,  nor  to  relinquish  any  privileges  pertaining  to  theh'  offices, 
they  believe  it  to  be  a  duty  which  they  owe  to  the  publick,  no  less 
than  to  themselves,  to  make  an  explicit  declaration  of  the  princi- 
ples by  which  they  are  governed. 

They  begin  by  stating  the  two  following  positions,  as  maxims 
of  political  morality,  which  they  deem  incontrovertible :  — 

1.  It  is  wrong,  under  any  form  of  government,  for  a  citizen 
or  subject  to  refuse  compliance  with  the  will  of  the  sovereign 
power,  when  that  will  is  fully  expressed,  except  in  cases  where 
the  rights  of  conscience  are  invaded,  or  where  oppression  is 
practised  to  such  an  extreme  degree  that  the  great  ends  of  civil 
government  are  defeated  or  highly  endangered. 

2.  Under  a  free  government,  where  the  sovereignty  is  exer- 
cised by  several  distinct  branches,  whose  respective  powers  are 
created  and  defined  by  written  constitutions,  cases  may  arise  in 
which  it  will  be  the  duty  of  the  citizen  to  delay  conforming  to  the 
ordinances  of  one  branch  imtil  the  other  branches  shall  have  had 


138  DARTMOUTH  COLLEGE  CAUSES. 

opportunity  to  act. — If,  for  example,  the  legislative  branch  should 
transcend  its  legitimate  power,  and  assume  to  perform  certain  acts, 
which  the  Constitution  had  assigned  to  the  province  of  the  judi- 
cial branch,  a  citizen,  injuriously  affected  by  those  acts,  might 
be  bound,  not  indeed  forcibly  to  resist  them,  but  in  the  manner 
pointed  out  by  law,  to  make  an  appeal  to  the  judiciary,  and  to 
await  its  decision. 

The  undersigned  deem  it  unnecessary  in  this  place  to  detail 
the  provisions  of  the  acts  of  the  Honorable  Legislature,  passed 
in  June  and  December,  A.  D.  1816,  relating  to  this  Institution. 
Those  acts  are  before  the  publick,  and  are  generally  understood. 

The  Board  of  Trustees,  as  constituted  by  the  charter  of  1769, 
at  their  annual  meeting  in  August  last,  took  into  consideration  the 
act  of  June,  and  adopted  a  resolution  "  not  to  accept  its  provi- 
sion." In  the  preamble  to  this  resolution  we  find  a  paragraph  in 
the  words  following:  "They  (the  Trustees)  find  the  lawfully 
settled  and  recognized  in  almost  every  case  which  has  arisen 
wherein  a  corporation,  or  any  member  or  officer  is  a  party,  that 
no  man  or  body  of  men  is  bound  to  accept  or  act  under  any  grant 
or  gift  of  corporate  powers  and  privileges ;  and  that  no  existing 
corporation  is  bound  to  accept,  but  may  decline  or  refuse  to  ac- 
cept, anj'^  act  or  grant  conferring  additional  powers  or  priAaleges, 
or  making  any  restriction  or  limitation  of  those  they  already  pos- 
sess ;  and  in  case  a  grant  is  made  to  individuals  or  to  a  corpora- 
tion, without  application,  it  is  to  be  regarded  not  as  an  act  obliga- 
tory or  binding  upon  them,  but  as  an  offer  or  proposition  to  con- 
fer such  powers  and  privileges,  or  the  expression  of  a  desire  to 
have  them  accept  such  restrictions,  which  they  are  at  liberty  to 
accept  or  reject." 

If  the  doctrine  contained  in  this  paragraph  be  correct,  and  of 
its  correctness  the  undersigned,  after  ascertaining  the  opinions  of 
eminent  jurists  in  most  of  the  New  England  States,  entertain  no 
doubt,  the  act  of  June,  and  of  course  the  acts  of  December,  have 
become  inoperative  in  consequence  of  the  non-acceptance  of  them 
by  the  charter  Trustees,  and  the  provisions  of  these  acts  are  not 
binding  upon  the  Corporation  or  its  officers.  We  take  the  liberty 
to  add  that,  in  our  opinion,  the  reasons  assigned  by  the  Trustees 
in  the  preamble  before  mentioned  for  not  accepting  the  act  of . 
June,  are  very  important  and  amply  sufficient.     Indeed,  it  has 


ADDRESS    OF    EX-OFFICERS.  139 

ever  appeared  to  us  that  the  changes  proposed  to  be  introduced 
into  the  charter  by  the  acts  in  question,  would  have  proved  highly 
inauspicious  to  the  welfare  of  this  Institution,  and  ultimately  in- 
jurious to  the  interests  of  literature  throughout  our  country. 

The  Trustees  appointed  agreeably  to  the  provisions  of  the  act 
of  June  have,  however,  thought  proper  to  organize  without  the 
concurrence  of  the  charter  Trustees,  and  to  perform  numerous 
decisive  acts. 

At  a  meeting  in  Concord,  on  the  fourth  instant,  they  brought 
several  specifications  of  charges  against  the  undersigned ;  and  at 
an  adjourned  meeting,  holden  on  the  twenty-second  instant,  the}- 
proceeded  to  displace,  discharge  and  remove  them  from  their 
respective  offices  in  Dartmouth  University.  A  similar  procedure 
was  adopted  against  four  of  the  Trustees  acting  under  the 
charter. 

Unless  we  greatly  mistake,  in  the  view  already  expressed  of 
the  act  of  June,  the  votes  of  the  University  Trustees  removing  us 
from  office  are  wholly  unauthorized,  and  destitute  of  any  legal 
effect;  and  we  are  still,  as  we  have  uniformly  claimed  to  be, 
officers  of  Dartmouth  College  under  the  charter  of  1769. 

The  charter  Trustees  having  resolved  to  assert  their  corporate 
rights,  and  having  for  this  purpose  recently  commenced  a  suit 
against  their  late  Secretary  and  Treasurer,  in  the  issue  of  which  it 
is  expected  the  question  between  them  and  their  competitors  will 
be  finally  settled,  the  undersigned,  being  united  with  them  in 
opinion,  in  principle,  and  in  feeling,  cannot  consent  to  abandon 
them,  or  to  perform  any  act  which  may  prejudice  their  claims  while 
this  suit  is  pending.  They  must,  therefore,  proceed  as  officers  of 
Dartmouth  College  to  discharge  their  prescribed  duties.  They  are 
sensible  of  their  obligation  to  render  submission  to  the  laws,  and 
their  first  inquiry,  in  the  case  before  them,  has  been,  what  is  law? 
The  result  is  a  full  conviction  in  their  own  minds,  that  the  course 
they  had  concluded  to  adopt  is  strictly  legal,  and  that  no  other 
course  would  be  consistent  with  their  duty.  If  they  err,  their 
error  will  shortly  be  corrected  by  the  decision  of  our  highest  judi- 
cial tribunals,  and  with  this  decision  they  will  readily  comply.  In 
the  meantime,  while  the  appeal  is  made  to  the  laws  of  their 
country,  and  to  the  Constitutions  of  this  State  and  of  the  United 
States,  which  are  the  supreme  law,  they  trust  that  none  of  their 


140  DARTMOUTH  COLLEGE  CAUSES. 

fellow-citizens  will  have  the  unkindness  to  chai'ge  them  with  a  want 
of  respect  for  the  government  under  which  they  live.  As  soon  as 
the  will  of  the  government  shall  be  fairly  expressed,  they  will 
render  to  it  a  prompt  obedience. 

The  undersigned  are  placed  in  a  position  singularly  difficult, 
and  highly  responsible.  To  them  it  seems  to  be  allotted  in  divine 
Providence,  to  perform  a  part,  which,  in  its  consequences,  may 
deeply  affect  the  interests  not  only  of  this  Institution,  but  of  all 
similar  Institutions  in  this  country.  And  although  they  are  fully 
conscious  of  their  own  inability  to  perform  this  part  in  a  manner 
worthy  of  its  importance,  yet  they  are  firmly  resolved,  relying  on 
divine  assistance,  not  to  shrink  from  any  duty,  or  any  danger, 
which  it  may  involve. 

The  penal  act  of  December  they  cannot  but  regard  as  un- 
necessarily severe  ;  nor  do  they  see  what  purpose  it  was  calculated 
to  answer,  except  to  influence  them,  by  the  prospect  of  embar- 
rassing suits,  to  an  abandonment  of  their  trust.  They  are  aware 
that  men  may  be  found  disposed  to  multiply  prosecutions  against 
them,  and  to  despoil  them  of  the  little  property  they  possess  ;  but 
they  believe  themselves  called  in  Providence  not  to  shun  this 
hazard,  as  they  cannot  reconcile  it  with  their  obligation  to  the 
Institution  under  their  care,  to  relinquish  the  places  they  occupy, 
until  it  shall  be  ascertained  that  they  cannot  rightfully  retain  them. 

As  the  University  Trustees  have  expressed  a  great  regard  for 
the  laws,  the  undersigned  have  a  right  to  expect,  that  neither  they, 
nor  any  agents  appointed  by  them,  will  resort  to  illegal  measures 
to  seize  on  the  College  buildings  and  property.  Should  such 
measures  unhappily  be  adopted,  the  undersigned  will  make  no 
forcible  resistance,  it  not  being  a  part  of  their  policy  to  repel 
violence  by  violence.  They  will  quietly  withdraw  where  they 
cannot  peaceably  retain  possession,  and  with  the  best  accom- 
modations they  can  procure,  will  continue  to  instruct  the  classes 
committed  to  them,  until  the  prevalence  of  other  counsels  shall 
procure  a  repeal  of  the  injurious  acts,  or  until  the  decision  of 
the  law  shall  convince  them  of  their  error,  or  restore  them  to 
their  rights. 

Francis  Brown. 
Ebenezer  Adams, 

ROSWELL  ShURTLEFF. 

Pebruaky  28,  1817. 


wheelock's  bequest.  141 

On  April  11,  1817,  Dr.  Wheelock  died,  having  bestowed 
npon  the  University,  hy  his  last  will,  property  amounting 
to  about  $40,000. 

On  June  10,  1817,  Cyrus  Perkins  was  appointed  a  trustee 
in  the  place  of  Judge  Farrar,  Rev.  Elijah  Dearborn  in  the 
place  of  Mr.  McFarland,  and  Rev.  Thomas  Beede  in  the 
place  of  Seth  Payson  ;  and  on  the  same  day  Roger  Vose 
was  appointed  an  overseer  in  the  place  of  Arthur  Liver- 
more,  resigned. 


CHAPTEK    yi. 

TEUSTEES  V.  WOODWARD —PKOCEEDINGS  IN  THE  SUPERIOR 
COURT  —  ARGUMENTS  AT  HAVERHILL  —  AGREEMENTS  OF 
COUNSEL  — COURT  AND  COUNSEL  — VIEWS  OF  MARSH  AND 
CHTEP  JUSTICE  PARSONS  — THE  GREAT  ARGUMENTS  AT 
EXETER— OPINION  OF  THE  STATE  COURT,  BY  CHIEF  JUS- 
TICE RICHARDSON  — WHAT  WEBSTER  AND  CHANCELLOR 
KENT  THOUGHT  OF  IT  —  DIFFICULTIES  IN  DRAWING  THE 
SPECIAL  VERDICT  —  CAUSE,  WHEN  AND  HOW  TAKEN  TO 
THE  SUPREME  COURT  OF  THE  UNITED  STATES  —  CORRE- 
SPONDENCE—COUNSEL  AT  WASHINGTON. 

At  the  May  term,  1817,  of  the  Supreme  Court  of  Judica- 
ture, the  following  plea  of  the  defendant  was  filed  by  his 
counsel,  Sullivan  and  Bartlett :  — 

And  the  said  William  H.  Woodward  comes  &  defends,  &c., 
when,  &c.,  and  prays  judgment  of  the  plaintiffs  writ  aforesaid, — 
because  he  says,  that  before  the  day  of  the  purchase  of  the 
plaintiffs  writ,  by  a  statute  of  this  State  passed  on  the  twenty- 
seventh  day  of  June,  in  the  year  of  our  Lord  1816,  entitled  "  An 
act  to  amend  the  charter  &  improve  &  enlarge  the  corporation  of 
Dartmouth  College,"  among  other  things  is  enacted,  "that  the  cor- 
poration heretofore  called  and  known  by  the  name  of  the  Trustees 
of  Dartmouth  College,  shall  ever  hereafter  be  called  and  known  by 
the  name  of  the  Trustees  of  Dartmouth  University," — and  that  the 
said  plaintiff  at  the  day  of  the  purchase  of  his  said  writ  was,  and 
ever  since  hath  been  &  is  named  &  known  &  called  by  the  name 
of  the  Trustees  of  Dartmouth  University.  Without  this  that  the 
said  plaintiff  on  the  day  of  the  purchase  of  his  said  writ  was  or 
since  hath  been  or  is  named  &  known  &  called  by  the  name  of  the 
Trustees  of  Dartmouth  College  as  by  the  said  writ  is  supposed  — 
to  wit :  at  Plymouth  aforesaid,  and  this  the  said  Woodward  is 
ready  to  verify.  Wherefore  he  prays  judgment  of  the  writ  afore- 
said, and  that  the  same  may  be  quashed,  &c. 

(142) 


PLEADINGS AKGUaiENTS    AT    HAVEKHILL.  14H 

The  orio^inal  lies  before  us.  It  bears  the  followiiiir  iii- 
dorsement  of  Judge  Smith:  ^'  Semble,  Bad.  XI  MS. 
Eep.  179." 

This  plea  was  probably  withdrawn  by  some  arrangement 
between  counsel. 

Upon  the  motion  of  Judge  Smith,  the  original  declaration 
to  which  we  have  referred  was  struck  out,  and  an  amended 
one,  in  his  handwriting,  was  "filed  by  leave  of  court,  to 
be  inserted  in  lieu  of  the  original  declaration."  The 
amended  declaration  was  "  trover  for  two  Books  of  Rec- 
ords, purporting  to  contain  the  records  of  all  the  doings 
and  proceedings  of  the  Trustees  of  Dartmouth  College, 
from  the  organization  of  the  corporation  until  the  7th  day 
of  October,  1816,  of  the  value  of  $5,000, — the  original  char- 
ter of  letters  patent  constituting  the  College,  of  the  value 
of  $10,000,— the  Common  Seal,  of  the  value  of  $1,000,— 
and  four  volumes  of  Books  of  account,  purporting  to  con- 
tain the  charges  and  accounts  in  favor  of  the  College,  of  the 
value  of  $10,000."  The  conversion  was  alleged  to  have 
been  made  on  the  7th  day  of  October,  1816,  and  the  plain- 
tiff's damages  laid  at  $50,000. 

This  term  of  the  Superior  Court  ended  May  24,  1817. 
Before  its  close,  the  cause  was  ably  argued  by  counsel  on 
both  sides. 

Mr.  Farrar,  one  of  the  counsel  for  the  trustees,  who 
reported  the  case,  says  that  at  this  term  "the  argument 
was  opened  on  the  part  of  the  plaintiffs  by  Mr.  Mason  and 
Mr.  Smith,  and  on  the  part  of  the  defendant  by  Mr.  Bart- 
lett  and  Mr.  Sullivan."  The  State  report,  prepared  by  Mr. 
Adams,  the  able  and  experienced  clerk  of  this  court,  under 
the  eye  of  the  judges,  says:  "The  cause  was  argued  in 
this  county,  at  the  last  [Ma}^]  term  of  this  court,  hy  Mason 
and  Smith  for  the  jilaintiffs,  and  by  the  attorney -general 
for  the  defendant." 

No  verdict  had  been  rendered  in  the  case,  and  it  was 
apparently  argued  upon  the  declaration,  the  printed  charter. 


144  DARTMOUTH  COLLEGE  CAUSES. 

and  copies  of  the  laws  the  validity  of  which  was  in  ques- 
tion, without  any  written  agreement  or  statement  of 
facts. 

The  counsel  for  the  defence  drew  up  the  following  agree- 
ment :  — 

It  is  agreed  by  the  counsel  for  the  parties  that  the  case  be 
stated  in  a  special  verdict,  to  be  drawn  up  (before  the  opinion  of 
the  court  shall  be  delivered)  by  the  counsel,  under  the  direction 
of  the  court.  The  verdict  to  contain  all  things  necessary  & 
proper,  in  the  opinion  of  the  court,  to  raise  the  questions  on  the 
validity  of  the  acts  of  the  Legislature  of  June  27,  1816,  entitled 
"An  act  to  amend  the  charter  &  improve  &  enlarge  the  corpora- 
tion of  Dartmouth  College" — and  the  act  of  Nov.,  entitled  "An 
act  in  addition  to  an  act  to  amend  the  charter,"  &c. 

And  all  the  facts  necessar}'  to  raise  the  question  upon  the 
validity  of  those  acts  are  admitted  by  the  parties. 

That  the  corporation  of  Dartmouth  College  had  a  charter  from 
Governor  Wcntworth  in  1769,  which,  if  necessary,  may  make  a 
part  of  this  statement — that  a  Board  of  Trustees  was  duly  organ- 
ized under  said  charter,  «fec., —  that  Nath'l  Niles  &  the  others 
claiming  to  be  Trustees  of  Dartmouth  College  were  duly  ap- 
pointed, «S;c. — that  the  acts  of  the  Legislature  before  named,  if 
necessary,  make  a  part  of  this  statement  —  that  agreeably  to  the 
provisions  of  said  acts  a  Board  of  Trustees  was  duly  organized  on 
the  4th  of  February,  1817,  and  Wm.  H.  Woodward  chosen  & 
qualified  as  Secretary  &  Treasurer  of  said  Board,  &  had  possession 
of  the  records,  &c.,  which  had  belonged  to  Dartmo.  College  — 
that  Nathl.  Niles  and  seven  others,  claiming  to  be  Trustees  of 
Dartmo.  College,  refused  to  comply  with  the  provisions  of  the 
Legislative  acts  aforesaid,  or  any  part  of  them,  &  proceeded  to 
remove  Wm.  H.  Woodward  from  the  offices  of  Secretary  & 
Treasurer  of  Dartmo.  College,  which  offices  he  had  held  previous 
to  the  passing  of  said  acts  —  that  they  chose  Mills  Olcott,  Esq., 
Secretary  &  Treasurer — who,  on  the  sixth  day  of  February, 
demanded  the  College  books,  &c.,  of  said  Woodward,  who  refused 
to  give  them  up,  claiming  to  hold  them  as  Secretary  and  Treasurer 
of  the  Trustees  of  Dartmouth  Universit}'. 

And  it  is  agreed  that  any  other  facts  may  be  embraced  in 


AGREEMEIS'TS    TROPOSED    AND    MADE.  145 

such  special  verdict,  that  tlie   court   shall   deem   necessary  to  a 
decision  on  the  merits. 

In  case  the  decision  should  be  in  favor  of  the  plaintiffs,  it  is 
agreed  that  the  court  enter  judgment  for  such  sum  in  damages  as 
they  may  think  proper,  which  judgment  shall  be  discharged  on  the 
delivery  to  the  plaintiffs  by  the  defendant  of  the  books,  &c.,  in 
his  possession  which  are  sued  for. 

This  draft  is  in  the  handwriting  of  Mr.  Bartlett.  It  bears 
the  following  indorsement  in  the  handwriting  of  Judge  ^ 
Smith:  "Statement  proposed  by  deft.,  May  Term,  1817, 
Grafton."  It  is  obvious,  for  reasons  deemed  sufficient  for 
them,  that  the  astute  counsel  for  the  plaintiffs  rejected  this 
aofreement,  and  caused  one  of  their 'own  to  be  substituted 
for  it. 

On  the  day  after  the  May  term,  1817,  the  counsel  entered 
into  the  following  agreement :  — 

Trustees  of  Dartmouth  College  vs.  W.  H.  Woodward.  It  is 
agreed  by  the  counsel  for  the  parties  that  the  case  be  stated  in  a 
special  verdict,  to  be  drawn  up,  (before  the  opinion  of  the  Court 
shall  be  delivered)  by  the  counsel,  under  the  direction  of  the 
Court. 

The  verdict  to  contain  all  things  necessary  and  proper,  in  the 
opinion  of  the  Court,  to  raise  the  question  on  the  validity  of  the 
acts  of  the  Legislature  on  the  subject  of  the  College  or  University. 

Jeremiah   Smith,  )  ^^^  p^.^ 
25  May,  1817.  J.  Mason,  S 

Sup.  Court,  Geo.  Sullivan,      )  ^i      r^^ 

Grafton.  Icha.  Bartlett,    ' 

Mr.  Brown,  in  his  letter  to  Farrar,  of  May  28,  1817,  says  : 
"  Your  obliging  letter  from  N.  Ipswich,  I  should  have 
acknowledged  before  this  time,  had  not  ordinary  &  extra- 
ordinary cares  occupied  the  whole  of  my  attention.  Imme- 
diately after  receiving  it  we  had  a  consultation  respecting 
the  subject  to  which  it  relates,  &  determined  to  print  with- 


146  DARTMOUTH  COLLEGE  CAUSES. 

out  delay.  Spear  actually  begun  the  work.  But  two  diffi- 
culties arose,  which  made  us  suspend,  &  at  length  give  over 
the  design.  In  the  first  place,  the  pamphlet  could  not  have 
come  out  a  sufficient  time  before  the  sitting  of  the  court  to 
accomplish  much ;  in  the  second  place,  we  scarcely  knew 
how  to  defray  the  exjDeuse.  But  what  are  40  or  50  doll, 
you  will  say  ?  The  sum  appears  trifling.  But  it  must  be 
considered,  that  we  have  had  &  still  have,  a  large  number 
of  such  trifling  sums  to  raise  for  extraordinary  purposes, 
and  that  after  these  are  provided  for,  we  can  scarcely  live 
on  what  remains.  This  famous  gentleman,  the  Publick, 
though  his  liberalty  has  been  much  bruited,  clenches  his  fist 
&  turns  away  his  eye,  with  a  most  provoking  indifierence, 
when  the  College  begins  her  story  of  distress.  — However, 
I  wish  not  to  be  ungateful.  We  have  received  something : 
.&  I  trust,  shall  receive  enough  to  enable  us  to  go  for- 
ward. 

"  The  result  at  Haverhill  is,  on  the  whole,  the  best,  we 
think,  that  could  have  been.  The  impression  on  all  who 
were  present  is  favourable.  Wo  feel  strengthened  and 
encouraged.  It  will  do  us  good  to  have  the  cause  argued 
at  Exeter.  The  merits  of  our  side  will  beconie  better 
known,  &  the  impulse  given  to  the  judges  will  be  salutary. 
Hitherto  God  hath  helped  us,  &  in  His  name  we  will  trust. 

"  The  next  subject  in  order  is  the  Commencement.  You 
must  endeavour  to  give  us  a  lift  by  helping  us  to  numbers 
&  respectability.  We  hope  to  have  exercises  which  will  not 
dishonour  us.  The  other  party  (if  they  get  forward  at  all) 
will  endeavor  to  make  a  great  display  —  and  democracy, 
I  suj^pose,  will  do  its  best.  Eumor  says,  that  the  Univ. 
officers  are  to  be  the  performers  at  their  commencement,  & 
that  they,  after  delivering  their  orations,  are  to  be  inaugu- 
rated with  much  pomp.  It  seems  to  me  that  this  will  be  a 
pretty  cold  business,  especially  after  what  has  taken  place 
at  Haverhill. 


LETTERS BROWX  TO  FARRAR.  147 

*'  There  was  much  of  truth  in  Mr.  Mason's  remark,  that 
'the  boys  would  determme  this  controversy.'  Our  grad- 
uating class  will  leave  a  large  space  to  be  supplied,  &  our 
friends  through  the  country  must  do  all  that  belongs  to 
them  to  procure  us  a  good  class  next  autumn.  The  College 
is  in  an  excellent  state.  Still,  parents  will  fear.  I  wish 
that  Mr.  P.  &  yourself  would  consider  whether  anything 
can  be  done  for  us  in  your  part  of  the  State.  Prof.  Adams 
has  procured  an  apparatus  from  Salem  &  Boston.  Can 
anything  favourable,  i.e.,  in  proof  of  the  permanency  of 
the  College,  be  made  of  my  declining  the  offer  at  Hamilton? 
The  prospects  of  that  institution  are  highly  promising,  & 
the  salary  offered,  $1800  —  double  the  salary  here.  If 
you  think  our  cause  would  be  aided  by  noticing  the  cir- 
cumstance of  my  declining,  you  may  do  it,  as  you  judge 
proper. 

' '  Will  it  still  be  best  to  publish  a  pamphlet  ?  There  will 
now  be  time  enough  ;  &  if  our  friends  think  proper,  it  shall 
be  done.  Our  friend  P.  complains  a  little  about  the  man- 
ner of  engaging  counsel ;  except,  however,  the  neglect  at 
Washington,  I  have  nothing  to  regret.  The  business  T\ill 
end  well  enough.  Allow  me,  my  dear  Sir,  to  give  you  my 
unfeigned  thanks  for  your  uniform  kindness,  zeal,  and  alac- 
rity in  our  behalf.  We  shall  not  repay  you  ;  but  we  shall 
be  grateful  &,  we  hope  you  will  continue  to  help  us  profes- 
sionally &  otherwise  whenever  you  have  an  opportunity. 
The  papers  have  announced  the  death  of  your  kind  and 
excellent  mother.  In  a  family  bound  together  as  strongly 
as  yours,  this  separation  will  be  most  tenderly  felt.  May 
God  support  you  all,  &  sanctify  the  dispensation  to  you. 
Your  excellent  Father  will  feel  like  a  pilgrim  &  stranger 
indeed.  Thus  we  fill  the  days  allotted  us  &  then  depart. 
Oh  how  excellent  that  religion  which  surrounds  the  grave 
with  light  &  hope,  &  reveals  a  sure  immortality  to  the 
people  of  God." 

In  his  letter  to  the  same,  of  September  23,   1817,  Mr. 


148  DARTMOUTH    COLLEGE    CAUSES. 

Brown  says :  "  I  am  more  and  more  in  favour  of  the  print- 
ing, &  think  I  can  warrant  you  100  subscribers  in  this  place 
&  the  immediate  vicinity.  I  wish  you  to  call  on  the  Judges 
without  delay,  that  they  may  have  knowledge  of  our  pur- 
pose to  lay  the  wiiole  subject  before  the  publick.  This 
must  operate  as  an  additional  motive  to  them  to  do  justice. 
Secure  the  copyright. 

"We  came  to  Concord  on  Saturday,  and  reached  home 
last  evening.  We  find  19  have  been  admitted;  14  to  the 
Freshman  Class.  We  think  the  Univ.  may  get  4  or  5  ;  per- 
haps more.  We  hope  a  considerable  number  more  will 
join  us. 

"In  reflecting  on  the  argument.  Prof.  A.  &  myself  have 
concluded  it  is  almost  impossible  for  the  Judges  to  decide 
against  us. — Can  you  not  ascertain  what  the  decision  will 
be,  soon,  &  communicate  your  opinion  to  us?  —  It  is  pre- 
sumed the  hook^  in  boards,  will  not  exceed  in  price  one 
dollar." 

The  cause  was  continued  to  the  September  term,  1817,  at 
Exeter,  in  Rockingham  County,  for  further  argument,  as 
the  counsel  for  the  trustees  were  uniDrepared  to  reply  as 
fully  as  they  desired. 

The  intellectual  gifts  of  the  court  and  counsel  were  wor- 
thy of  the  greatness  of  the  cause.  As  but  two  of  them  had 
a  national  reputation,  a  brief  sketch  may  not  be  out  of 
place.  The  court  consisted  of  William  Merchant  Richard- 
son, Samuel  Bell,  and  Levi  Woodbury. 

Chief  Justice  Richardson  was  forty-four  years  old.  He 
was  a  graduate  of  Harvard,  a  member  of  Congress  from 
Massachusetts  in  1812,  and  was  subsequently  reelected; 
but,  being  averse  to  political  life,  resigned  and  removed  to 
Portsmouth,  in  his  native  State,  in  1814.  From  his  appoint- 
ment, in  1816,  till  his  death,  in  1838,  he  was  chief  justice  of 
the  highest  court.  Physically  he  was  as  imposing  as  he 
was  great  intellectually.  Like  Marshall's,  his  eyes  were 
black,  piercing,  and  brilliant;  like  Marshall's,  his  hair  was 


JUDGES    OF    THE    STATE    COURT.  149 

black  as  a  raven's  wing;  and  like  Marshall,  he  had  refined 
and  simple  tastes  ;  but,  unlike  Marshall,  he  had  a  full,  high, 
and  broad  forehead.  In  learning  and  industry  he  ranked 
with  Chief  Justice  Parsons.  He  was  a  great  and  honest 
judge.  Some  judges  owe  much  of  their  eminence  to  their 
subtlety  in  judicial  fence,  —  a  species  of  cuttle-fish  logic. 
They  succeed  by  darkening.  It  is  oftentimes  hard  to  an- 
swer, because  difficult  to  understand  them.  This  great 
attribute,  though  not  great  judicial  quality,  Richardson 
lacked.  His  reasoning  and  his  heart  alike  were  as  open 
and  ingenuous  as  the  light  of  day.  He  was  reverenced  by 
the  people  of  the  State  as  no  other  judge  ever  was. 

Judge  Bell  was  forty-seven  years  old.  His  was  a  family 
famous  for  their  talent.  He  was  the  father  of  the  late  Chief 
Justice  Bell;  trustee  of  Dartmouth  College  (of  which  he 
was  a  graduate)  from  1808  to  1811  ;  judge  from  1816  to 
1819  ;  governor  from  1819  to  1823,  and  United  States  sena- 
tor from  1823  to  1835.  He  was  a  man  of  immense  erudi- 
tion and  great  business  capacity,  a  thorough  lawyer,  and 
possessed  of  great  moral  courage. 

Judge  Woodbury  was  twenty-eight  years  old.  He  was  a 
graduate  of  Dartmouth  ;  Avas  judge  from  1817  to  1819  ; 
governor  in  1823 ;  United  States  senator  from  1825  to 
1831  ;  secretary  of  the  navy  under  Jackson,  from  1831  to 
1834;  secretary  of  the  treasury  from  1834  to  1841,  under 
Jackson  and  Van  Buren  ;  and  then  declined  the  office  of 
chief  justice  ol  New  Hampshire.  He  was  again  senator  in 
Congress  from  1841  to  1845,  when  he  was  appointed  by 
President  Polk  one  of  the  justices  of  the  Supreme  Court  of 
the  United  States,  which  office  he  held  until  his  death,  in 
1851.  The  probabilities  are  very  strong  that  he  would 
have  been  president  in  the  place  of  General  Pierce,  had  his 
life  been  spared.  Of  Judge  Woodbury,  Webster,  in  his  let- 
ter to  Judge  Story,  of  January  4,  1824,  said,  speaking  of 
two    appointments   that   might   be    made   to    that   bench, 


150  DARTMOUTH  COLLEGE  CAUSES. 

"There  is  no  doubt  that  Judge  Woodbury  would  be  one, 
and  he  is  as  sound  a  man  as  I  know  of. ' '  Richardson  was  a 
Federalist ;  Bell  and  Woodbur;/  were  both  Anti-Federalists. 
Mason,  a  competent  judge,  if  ever  any  man  was,  said  of 
these  judges,  that  "  three  more  men  so  well  qualified  as  the 
present  judges,  and  who  would  accept  the  office,  could  not 
be  found  in  the  State." 

It  is  not  quite  clear  whether  Judge  Woodbury  participated 
in  the  decision  of  the  cause. 

The  earlier  volumes  of  the  New  Hampshire  Reports  were 
reported  by  the  judges  themselves.  Every  judge  prepared 
for  the  press  the  head-notes,  statement  of  case,  and  opinion 
in  each  cause  in  which  the  judgment  of  the  court  was  pro- 
nounced by  him.  In  every  case  when  the  full  bench  did 
wot  sit,  the  State  report  containing  the  case  assumes  to 
show  the  fact ;  but  there  is  nothing  in  it  to  indicate  that 
Judge  Woodbury  did  not  participate  in  this  decision .  Judge 
Farrar,  in  his  report,  assumes  that  all  the  judges  sat,  saying  : 

At  the  September  Term,  in  Rockingham  County,  present  all 
the  Judges,  viz. :  — 

Hon.  William  M.  Richardson,  Chief  Justice. 
Hon.  Samuel  Bell,        ) 

TT  T  Trr  i  Justices. 

Hon.  Levi  Woodbury,  3 
The  cause  came  on  to  be  again  argued. 

We  have  before  us,  as  we  write,  the  printed  copy  of  the 
opinion,  etc.,  furnished  by  the  chief  justice  to  Governor 
Plumer.  After  entitling  the  cause,  and  stating  when  and 
where  the  opinion  was  delivered,  there  follows  :  — 


Present. 
Hon.  William  M.  Richardson,  Chief  Justice. 
Hon.  Samuel  Bell, 
Hon.  LevyWoodburi 


'        >  Justices. 

RY,    ' 


As  we  have  before  said.  Justices  Bell  and  Woodbury  were 
graduates  of  Dartmouth.     Webster,  in  the  "Caesar  in  the 


JUDGES  —  COUNSEL.  151 

Senate  "  peroration  in  his  argument  at  Exeter,  begged  them, 
as  alumni  of  the  College,  to  forbear  the  fatal  blow  which, 
Brutus-like,  would  come  so  near  the  heart  of  their  alma 
mater. 

But,  upon  the  other  hand,  the  manuscript  dockets  of  the 
clerk  of  that  court  show  the  following  entries  at  the  May 
and  November  terms,  1817  :  — 

Olcott,     *     *     *     Trus.    Dartmouth    College,    Appees.,    v. 
Wm.  H.  "Woodward. 
Jus.  Woodbury  does  not  sit. 

Continued  nisi. 
Olcott. 
May,   1817.  29.  Trustees   Dartm°.    College,    A2)ts.    v. 

Jury  as  in  William  H.  Woodward. 

No   4,  Hon^'®  Judge  Woodbury  does  not  sit 

State  Trials.  in  this  case. 

Verdict  —  Deft,  not  guilty. 
Judgt.  for  Deft.,  his   costs  taxed  at 
811.42. 

These  entries  were  in  some  respects  manifestly  incorrect. 
Papers  on  the  files  show  that  the  cause  was  never  tried  by  a 
jury.  We  know  that  the  defendant  had  counsel,  and  that 
Mr.  Olcott  was  not  sole  counsel  for  the  plaintiffs. 

At  the  September  term.  Mason,  Smith,  and  Webster  ar- 
gued the  cause  for  the  trustees,  and  Sullivan  and  Bartlett 
for  the  State.  These  were  all  members  of  the  Rockingham 
bar,  when  it  was  literally  "  an  arena  of  giants."  Of  this 
bar  Judge  Story  said  that  it  had  ' '  vast  law  learning  and 
prodigious  intellectual  power." 

At  the  Circuit  Court  for  New  Hampshire,  October,  1812, 
Judge   Story  made  the  following  orders :  — 

Whereas,  the  court  have  a  full  knowledge  of  the  learning, 
integrity  and  ability  of  the  Honorable  Jeremiah  Smith,  and  the 
Honorable  Jeremiah  Mason,  and  upon  the  most  entire  confidence 
therein,  and  being  willing  to  express  this  opinion  in  the  most  public 
manner,  as  well  as  a  testimony  to  their  merits,  as  also  a  laudable 
example  to  the  junior  members  of  the  bar;  and  the  court  having 


152  DARTMOUTH  COLLEGE  CAUSES. 

taken  the  premises  into  their  mature  deliberation,  of  their  own 
mere  motion  and  pleasure,  have  ordered,  and  do  hereby  order, 
that  the  honorable  degree  of  serjeant-at-law  be  and  hereb}-  is  con- 
ferred upon  them,  the  said  Jeremiah  -iraith  and  Jeremiah  Mason, 
and  the  court  do  further  order  they  be  respected  as  such  by  all 
the  officers  of  this  court,  and  all  others  whom  the  same  may  con- 
cern, and  that  this  order  be  entered  upon  the  records  -of  the 
court."  "The  court,  on  mature  deliberation,  do  order  that  the 
degree  of  barrister-at-law  be  and  hereby  is  conferred  on  the  fol- 
lowing gentlemen,  who  are  counsellors  of  this  court,  viz. :  Oliver 
Peabody,  Daniel  Humphreys,  George  Sullivan,  and  Daniel  Web- 
ster, esquires ;  in  testimony  of  the  entire  respect  the  court  enter- 
tain for  their  learning,  integrity  and  ability  ;  and  the  court  further 
order  that  this  order  be  entered  among  the  records  of  the  court." 

At  the  time  of  the  argument,  Smith  was  fifty-eight  years 
old ;  Mason,  fifty  ;  Sullivan,  forty-three  ;  Webster,  thirty- 
five  ;  and  Bartlett,  thirty-one.  Mason  was  from  Connecti- 
cut, but  read  law  and  commenced  practice  in  Vermont.  He 
was  six  feet  and  seven  inches  in  height,  and  proportionately 
large  in  other  respects.  His  intellectual  exceeded  his  physi- 
cal stature.  Webster,  with  a  thorough  knowledge  of  the 
man,  deliberately  wrote  down  that  as  a  lawyer,  as  a  jurist, 
no  man  in  the  Union  equalled  Mason,  and  but  one  ap- 
proached him,  and  a  quarter  of  a  century  later  as  deliber- 
ately reaffirmed  his  estimate.  Mason  had  two  loves,  one 
desire,  and  one  passion.  He  loved  his  family,  resigning  his 
position  as  United  States  senator  rather  than  be  separated 
from  them  t,  and  next  to  his  family,  he  loved  the  law  de- 
votedly. He  desired  a  competence,  and  his  passion  was  a 
vitriolic  contempt.  The  gifts  and  graces  of  the  orator  were 
denied  to  this  great  man,  but  on  his  feet  in  the  court-room 
he  was  seemingly  an  inspired  Euclid. 

Smith  had  been  four  terms  in  Congress,  judge  of  the 
United  States  Circuit  Court,  chief  justice  of  the  Superior 
Court  for  seven  years  ;  then  governor  of  the  State,  and  then 
cliief  justice  of  the  Supreme  Court  for  three  years.  He 
was  of  Scotch-Irish  stock  ;  possessed  of  great  and  accurate 


THE    COUNSEL.  153 

learning,  and  of  great  natural  abilities  j  but,  like  Mason,  he 
was  no  orator. 

Webster,  in  his  letter  to  Chancellor  Kent,  of  May  23, 
1825,  says  :  "  You  know  Judge  Smith,  of  New  Hampshire, 
at  least  in  his  public  and  professional  character.  I  wish  to 
recommend  him  to  you  on  the  score  of  private  worth  and 
social  qualitieSc  There  are  few  men  in  the  world,  I  think, 
more  to  your  taste « 

"  I  entertain  for  hini  the  highest  regard,  and  true  grati- 
tude. When  I  came  to  the  bar  he  was  chief  justice  of  the 
State.  It  was  a  day  of  '  the  gladsome  light '  of  jurispru- 
dence. His  friends,  and  I  was  one  of  them,  thought  he 
must  be  made  governor. 

"  For  this  office  we  persuaded  him  to  leave  the  bench, 
and  that  same  '  gladsome  light '  cheered  us  no  longer. 
Ponto  nox  incuhat  astra.  I  need  not  continue  Virgil,  nor 
say  how  the  east  wind,  and  the  north  wind,  and  the  stormy 
south  wind  all  rushed  out  together,  and  what  a  shipwreck 
they  made  both  of  law  and  parties. 

"  Judge  Smith  has  since  occasionally  practised  the  law, 
but  for  some  years  has  lived  entirely,  I  believe,  with  his 
books  and  his  friends.  He  knows  everything  about  New 
England,  having  studied. much  its  history  and  its  institu- 
tions ;  and  as  to  the  law,  he. knows  so  much  more  of  it  than 
I  do,  or  ever  shall,  that  I  forbear  to  speak  on  that  point." 

The  merit  of  this  is  its  truthfulness. 

Of  Webster,  the  "  Great  Black  Giant  of  the  East,"  it  is 
only  necessary  to  say  that  he  was  in  full  possession  of  his 
great  powers. 

Sullivan  was  from  Irish  and  Revolutionary  stock,  —  a  race 
of  soldiers,  orators,  and  lawyers.  He  was  attorney-general 
(as  his  father  was  before  him,  and  his  son  after  him)  for 
twenty-one  years  ;  a  classical  scholar,  well  read  in  the  law  ; 
an  excellent  special  pleader ;  swift  to  perceive,  prompt  to 
act,  and  full  of  resources.     He  relied  too  little  on  his  prep- 


154  DAETMOUTH  COLLEGE  CAUSES. 

aration,  and  too  much  upon  his  oratory,  his  power  of  illus- 
tration and  argument.  But  neither  the  court,  the  jury,  nor 
the  people  ever  grew  weary  of  listening  to  his  silver  tones  or 
his  ariruments,  that  fell  like  music  on  the  ear. 

Bartlett,  the  uncle  of  the  present  president  of  the  College, 
was  also  of  Revolutionary  stock.  He  and  Webster  were 
from  the  same  town,  and  theirs  were  the  two  leading  families 
in  it. 

Bartlett  was  a  "little  giant,"  four  years  younger  than 
Webster.  He  served  three  terms  in  Congress.  He  was 
from  a  family  eminent  for  its  physicians,  preachers,  and 
jurists.  He  was  indefatigable  in  preparation  ;  eloquent  in 
its  highest  sense ;  ready,  witty,  and  a  popular  idol.  He 
was  often  pitted  against  Mason  and  other  great  lawyers. 
Between  Webster  and  Bartlett  there  existed  a  personal  and 
political  antipathy,  which  continued  for  years .  This  cropped 
out  in  the  argument  of  this  cause,  and  is  very  apparent 
from  Mr.  Webster's  correspondence. 

At  the  September  term,  1817,  the  counsel  for  the  College 
met  at  Exeter,  thoroughly  prepared  for  the  argument. 

A  portion  of  the  old  trustees  put  their  case  primarily  upon 
what  may  be  termed  the  Parsons  view,  and  the  others, 
upon  the  contract  theory  and  the  obligation  clause.  The 
former  view  was  supported  by  Thompson,  Marsh,  Mason, 
and  Webster,  though  they  also  gave  countenance  to  the 
other  theory. 

It  was  but  natural  that  Thompson  should  share  the  views 
of  Parsons.  He  read  law  with  him  ;  was  a  favorite  student, 
familiar  with  his  history  and  opinions  ;  and  in  the  remon- 
strance of  June  19,  1816,  which  was  undoubtedly  prepared 
by  Thompson,  and  from  which  we  have  before  quoted,  the 
Parsons  view  alone  is  reflected. 

Marsh,  as  we  have  already  seen,  was  a  leading  trustee, 
and  the  one  through  whom  Welister  proposed  to  bring  one 
of  the  College  causes  in  the  Circuit  Court.     He  was  plaintiff 


THE    COUNSEL MARSH.  155 

in  one  of  those  suits,  and  was  relied  upon  by  Mason,  Smith, 
and  Webster  to  take  their  places,  and  argue  these  causes  in 
the  Circuit  Court. 

Mason,  in  his  letter  to  Marsh,  of  April  14,  1818,  says  : 
*'  The  counsel  engaged  in  your  first  cause  being  j)retty  well 
exhausted,  we  shall  expect  you  to  come  with  a  treasury  of 
new  things,  and  that  you  will  take  upon  you  [the]  principal 
burden  of  the  argument." 

In  his  letter  of  September  11,  1818,  to  the  same,  Mason 
says  :  "I  wrote  you  a  few  days  ago.  I  have  since  received 
a  letter  from  Mr.  Webster,  in  which  [he]  seems  to  think  it 
of  primary  importance  to  have  one  of  the  causes  carried  to 
the  Supreme  Court.  Under  this  impression  I  think  you  had 
best  attend  the  Circuit  Court  if  possible.  You  will  remem- 
ber Judge  Story  said  if  necessary  he  would  hold  a  special 
term  for  these  causes." 

In  1816,  Marsh  prepared  the  following  "Minutes  of 
authorities  and  observations  in  relation  to  the  afiairs  of 
Dartmo'  College,"  in  answer  to  the  arguments  on  the 
other  side,  and  particularly  to  the  message  of  Governor 
Plumer :  — 

"  The  Parliament  of  Great  Britain,  consisting  of  the  king, 
lords  and  commons  (the  three  estates  of  the  kingdom),  is 
said  in  the  vaunting  language  of  legal  &  political  writers,  to 
be  omnipotent.  Anciently  the  king  was  absolute  —  all 
power  &  authority  being  vested  in  the  person  of  the  king, 
he  parcelled  it  out  to  the  lords  &  commons  at  different 
periods,  according  as  he  found  it  necessary  to  flatter  the  one 
or  the  other,  till  the  present  Constitution  became  firml}^ 
established.  In  1295  —  23dE  1st  the  first  regular  meeting  of 
the  commons  was  called  by  an  invitation  of  Edward  First  to 
the  different  towns  &  boroughs  in  the  counties,  to  send  dep- 
uties to  the  Parliament.  In  1296 — 24  Ed  I.  the  king 
stipulated  to  levy  no  tax  or  impost  without  the  consent  of 
the  lords  &  commons.  The  right  of  trial  by  jury  that  '  no 
freeman  should  be  imprisoned  or  disseised  of  his  freehold, 


156  DARTMOUTH  COLLEGE  CAUSES. 

or  liberties  or  of  free  customs,  &c.,  but  by  legal  judgment 
of  his  peers  or  by  law  of  the  land,'  had  been  enjoyed  under 
the  Saxon  monarchs  —  &  though  suppressed  by  William  the 
Conqueror  was  again  revived  by  the  claims  of  the  people, 
&  confirmed  by  his  descendants  Henry  II.  &  John ;  & 
this  last  prince  in  1215,  signed  the  Charter  of  the  For- 
rest ;  and  at  the  same  time  that  famous  grant  of  English 
liberties,  the  Magna  Charta. 

"  Thus  by  successive  grants,  &  by  slow  degrees,  the  abso- 
lute power  of  the  crown  became  vested  in  the  three  estates  of 
the  kingdom,  the  king,  lords  &  commons.  But  the  finishing 
limitation  of  the  prerogatives  of  the  crown  was  the  act 
13th  William  III.  perhaps  1700,  changing  the  terms  of  the 
commissions  of  the  12  judges  from  durante  bene  placito  to 
quamdiu  se  bene  gesserint. 

' '  And  an  act  in  the  early  part  of  the  present  reign  '  that 
the  commissions  of  the  judges  shall  continue  in  force  not- 
withstanding the  demise  of  the  Idng '  —  the  Parliament  is 
therefore  omnipotent  or  absolute,  having  derived  its  powers 
from  the  king,  as  the  source  of  power  and  authority,  &  not 
from  the  people  ;  and  their  pOwer  not  being  derived  from 
the  people,  they  are  accountable  to  no  one. 

"  The  Constitution  is  made  up  of  various  grants  &  con- 
cessions of  the  crown,  &  acceptances  by  the  other  estates  ; 
so  that  even  an  act  of  Parhament,  limiting  the  power  of  the 
respective  branches,  or  varying  the  structure  of  the  govern- 
ment, is  a  part  of  the  Constitution.  The  Parliament  there- 
fore is,  in  its  authority,  paramount  to  the  Constitution  as 
existing  at  any  given  period. 

"  The  Parliament  of  G.  Britain  being  omnipotent,  & 
beyond  control,  can  pass  acts  of  attainder;  &,  in  this  sense 
may  be  regarded  as  a  high  court  of  criminal  jurisdiction. 
This  power  is  not  given  to  any  legislative  body  in  the  United 
States.  This  may  account  for  the  expression  in  Blackstone, 
1st  B.  Com.  485-512,  that  corporations  may  be  dissolved 
by  act  of  Parliament ;  &  indeed  is  assigned  as  the  reason 


marsh's  argument.  157 

though  this  dictum  is  supported  by  no  decision  Stat.  1 
Geo.  1st. 

"  In  February  1792,  the  people  of  N.  Hampshire,  being 
then  free  &  independent,  framed,  &  adopted  their  present 
Constitution,  giving  to  the  respective  branches  of  the  govt 
their  specific  powers  &  authorities,  dividing  them  into  execu- 
tive, legislative  &  judicial. 

*'The  powers  of  each,  are  equally  derived  from  the 
people ;  &  each  is  alike  limited  by  the  Constitution  ;  & 
neither  the  people,  or  any  individual,  is  any  more  bound  by 
any  unconstitutional  act  of  the  Legislature  than  by  any 
illegal  act  of  the  meanest  officer  of  the  govt.  The  Legisla- 
ture deriving  its  authority  from  the  letter  of  the  Constitu- 
tion, it  is  impossible  that  it  can  ever  pass  any  act  of 
paramount  authority,  or  (make  any  law)  in  derogation  of 
its  provisions. 

* '  It  may  now  be  inquired  whether  the  act  of  the  late  Gen- 
eral Court  entitled  '  an  act  to  amend  the  charter  &  improve 
the  corporation  of  Dartmouth  College '  can  be  in  any  way 
binding  upon  the  old  corporation,  upon  constitutional  prin- 
ciples, without  the  acceptance  of  the  same  by  the  corpora- 
tion. 

"It  is  remarkable  that  the  people  of  N.  Hampshire  in 
the  declaration  of  their  rights  have  asserted,  and  maintained 
the  right  of  trial  by  jury  in  the  very  words  of  Magna 
Charta,  '  no  person  shall  be  arrested,  imprisoned,  despoiled 
or  deprived  of  his  property,  immunities  or  privileges,  put 
out  of  the  j)rotection  of  the  law,  exiled,  or  deprived  of  his 
life,  liberty  or  estate,  but  by  the  judgment  of  his  peers,  or 
the  law  of  the  land.'     (Con.  N.  H.  Bill  of  Rights,  sec.  XV. ) 

"  In  conferring  power  on  the  Gen  Court,  as  a  Legislature, 
the  Constitution  expressly  declares  '  that  full  power  & 
authority  are  hereby  given  &  granted  to  the  said  Gen  Court 
from  time  to  time,  to  make,  ordain  &  establish  all  manner 
of  wholesome  and  reasonable  orders,  laws,  statutes,  ordi- 
nances, directions  &  instructions,  either  with  penalties  or 


158  DARTMOUTH  COLLEGE  CAUSES. 

without,  SO  as  the  same  be  not  repugnant  to  or  contrary  to 
this  Constitution.' 

"Usurping  authority  not  given  by  the  Constitution  by 
either  branch  of  the  govt  is  acting  both  repugnant  &  con- 
trary to  the  Constitution.  If  therefore,  in  passing  this  law 
(act)  the  Legislature  has  assumed  powers  not  delegated  by 
the  Constitution ;  (by)  the  very  instrument  by  which  the 
Legislature  is  created,  the  act  is  void.  A  corporation  is, 
in  law,  a  person ;  and  as  such,  is  invested  with  property, 
with  immunities  &  privileges^  of  which  it  cannot  be  di- 
vested or  deprived  without  a  due  investigation  in  a  course 
of  legal  proceedings,  in  which  the  facts  with  which  it  is 
charged,  and  which  are  supposed  to  work  a  forfeiture  of 
their  property  and  privileges,  sliall  be  ascertained  by  the 
finding  of  a  jury,  or  conceded  in  the  pleadings.  The  Legis- 
lature is  not  a  competent  tribunal  for  the  trial  of  facts  on 
which  a  forfeiture  of  life,  liberty,  property  or  privileges  can 
be  predicated ;  nor  is  it  in  any  sense,  a  judicial  tribunal. 
If  therefore,  facts  were  ascertained,  it  could  not  pass  a 
judgmt  of  forfeiture.  The  Legislature  can  merely  pass 
laws  for  the  establishment  of  courts  of  justice,  &  other  gen- 
eral laws,  ordinances  &  regulations  for  the  orderly  conduct 
of  the  people  ;  but  have  no  power  to  carry  them  into  effect 
either  as  executive  or  judicial  officers. 

"But  the  act  under  consideration  does,  if  carried  into 
effect,  deprive  the  Trustees  of  Dartmo.  College  both  of 
their  property,  powers,  immunities  &  privileges ;  &  vest 
them  in  another  body  ;  &  this  without  any  judgment  or 
forfeiture  against  them  by  any  court  of  competent  jurisdic- 
tion. The  act  under  consideration  has  altered  the  name  of 
the  corporation  from  that  of  Trustees  of  Dartmouth  College 
to  that  of  Trustees  of  Dartmouth  University  ;  has  provided 
that  instead  of  twelve,  the  body,  shall  consist  of  twenty- 

'  By  incorporation  it  acquires  jus  persona  &  becomes  persona  politica,  & 
is  capable  of  all  civil  right  habendi  et  agendi.  (4  Com.  Dig.  255,  tit.  "Fran- 
chise," F.) 


MARSH  S    ARGUMENT.  159 

one  —  that,  instead  of  leaving  the  additional  number  to  be 
appointed  by  the  trustees  now  in  office,  they  shall  be 
appointed  by  the  Governor  &  Council ;  that  all  the  rights, 
powers,  authorities,  property,  liberties,  privileges  &  immu- 
nities enjoyed  by  the  Trustees  of  Dartmo.  College,  shall  be 
holden,  used  &  enjoyed  by  the  Trustees  of  Dartmo.  Uni- 
versity. This,  then,  is  a  direct  act  of  usurpation,  taking 
property,  rights,  privileges  &  immunities  from  one  body  of 
men  incorporated  so  as  to  be  one  person^  in  law,  &  giving 
them  to  another  body  of  men  ;  not  only  so,  it  is  divesting 
individuals  of  their  rights  &c.  It  is  a  privilege  to  have  a  cer- 
tain proportion  of  power,  &  authority  &  property  in  any  body 
corporate  ;  to  increase  the  number  therefore  is  to  divest  each 
individual  of,  at  least,  a  portion  of  his  property,  power  & 
privileges.  Now  to  divest  any  one  of  a  part  of  his  prop- 
erty, rights  or  privileges,  or  immunities,  though  it  be  but  a 
part  of  what  he  holds  in  common  with  others,  is  the  same 
in  principle  ;  &  as  much  against  the  Constitution,  as  to 
divest  him  of  the  whole. 

"  Depriving  an  individual  member  of  a  corporation  of  his 
franchise,  without  authority  for  so  doing ;  and  without  con- 
viction in  due  course  of  law,  was  adjudged  to  be  a  violation 
of  that  clause  of  Magna  CJiarta,  J^l  Co  99  Bagg's  case; 
'  but  when  a  corporation  had  power  to  remove  &  did  remove 
for  good  cause,  that  will  be  deprivation  by  the  law  of  the 
land.'     Idem. 

"  To  deprive  a  whole  corporation  of  its  rights  ;  or  any 
portion  of  them  must  be  a  more  gross  infringement  of  the 
Constitution  of  N.  H. 

"  Suppose  a  township  granted  to  60  proprietors  in  com- 
mon, could  the  Legislature  by  an  act  passed  before  any 
division  is  made,  admit  20  more  persons  as  proprietors. 

*'  The  authorities  furnish  no  instance  where  a  corporation 
has  ever  been  divested  of  its  property  or  authority,  or  any 
portion  of  either  without  regular  process,  in  the  nature  of  a 

»  4  Com.  Dig.  255,  tit.  "Franchise,"  F. 


160  DARTMOUTH  COLLEGE  CAUSES. 

quo  warranto  in  which  the  parties  have  been  admitted  to 
the  benefit  of  pleading  to  issue,  &  of  trial  as  in  other 
cases. 

' '  During  the  tyranical  reign  of  Charles  the  I  &  II  when 
the  corporation  of  the  city  of  London,  &  other  corporations 
in  the  kingdom  were  so  much  in  the  way  of  those  ambitious 
princes,  it  was  never  thought  practicable  to  deprive  them 
of  their  privileges  by  an  express  act  of  the  king  or  Parlia- 
ment, but  a  quo  warranto  was  always  resorted  to  under 
some  pretext  or  other. 

"  The  case  of  Gresham  College  is  relied  on  ;  this  is  col- 
lected from  the  encyclopedia,  or,  perhaps,  from  Ree's 
cyclopedia ;  &  can,  at  best,  be  regarded  only  as  a  diction- 
ary, or  more  properl}^  a  spelling-book  authority ;  &  is  suit- 
able only  to  be  quoted  by  school-boys.  It  is  incidentally 
mentioned  in  a  biographical  sketch  of  Sir  Thomas  Gresham  ; 
the  particulars  are  not  given ;  yet  so  far  as  facts  appear,  it 
is  not  an  authority  in  point.  The  property  in  the  case  by 
the  will  of  Sir  Thomas  was  vested  in  the  corporation  of  the 
city  of  London  in  1579  ;  with  other  property  there  was 
given  a  building  which  was  afterwards  converted  into  a  col- 
lege, for  the  purpose  of  delivering  certain  lectures,  by  lect- 
urers who  should  be  appointed  by  the  Maj^or  &  Aldermen 
of  London,  &  by  the  company  ;  &  who  should  be  unmarried 
men  ;  &  should  have  fifty  pounds  salary,  &  lodging  rooms 
in  the  college.  It  became  necessary  to  remove  this  build- 
ing in  order  to  erect  one  for  a  more  important  purpose  ;  the 
Excise  office.  The  Mayor  and  Aldermen  of  London  peti- 
tioned Parliament  for  leave  to  remove  this  building ;  &  to 
have  the  lecturers  enjoy  their  salaries,  notwithstanding  they 
should  be  married  ;  this  was  granted,  by  act  of  Parliament  8 
Geo  III  &  a  stipulation  made  with  the  lecturers  that  in  lieu 
of  their  chambers,  they  should  receive  £50  more  per 
annum,  &  leave  to  marry  ;  and  the  lectures  were  afterwards 
delivered  in  a  chamber  of  the  Roj^al  Exchange,  which  had 
been  built  by  Sir  Thomas  Gresham  at  his  own  expense  ;  & 


marsh's  argument.  161 

from  the  income  of  which  he  had  endowed  these  professor- 
ships. 

"  This  property  was  already  vested  in  the  corporation  of 
the  city  of  London  unconditionally ;  but  in  trust  that  the 
avails  should  be  paid  to  unmarried  lecturers.  If  the  lectur- 
ers married  they  would  cease  to  be  such ;  the  Parliament 
dispensed  with  this,  and  enabled  them  to  enjoy  the  salary 
notwithstanding  they  should  marry  ;  &  all  this  was  done  at 
the  request  of  the  corporation,  &  by  agreement  with  the 
lecturers.  There  is  nothing  in  all  this  about  moving  the 
college  to  another  place.  The  corporation  after  taking 
down  the  building,  by  consent  of  Parliament,  provided 
another  lecture  room,  in  a  building  given  at  the  same  time, 
by  the  same  donor,  &  paid  the  lecturers  a  compensation  in 
lieu  of  the  use  of  their  chambers.  There  is  no  attempt 
here,  to  interfere  with  the  property  or  powers  of  the  cor- 
poration, without  its  consent. 

"  It  is  said  '  that  in  this  country  a  number  of  the  States 
have  passed  laws  which  made  material  changes  in  the  char- 
ters of  their  colleges.'  It  is  not  here  said  whether  this  was 
done  at  the  request,  or  by  the  consent  of  their  corporations. 
It  is  believed  that  no  instance  can  be  found  where  this  has 
been  attempted  without  such  consent.  The  Legislature  of 
Massachusetts  some  few  years  since,  passed  an  act  that  the 
ministers  of  such  &  such  parishes,  should  be,  with  others, 
overseers  of  Harvard  College;  but  Chief  Justice  Parsons, 
who  is  said  to  have  penned  the  act,  inserted  a  proviso  that 
the  act  should  be  obligatory  when  accepted  by  the  corpora- 
tion ;  &  not  till  then.  This  was  afterwards  repealed  & 
subsequently  reenacted,  much  in  the  same  words  :  this  is 
a  strong  authority  in  our  favor  showing  clearly  the  opinion 
of  C.  J.  Parsons,  and  of  the  Legislature  of  Massachusetts 
that  they  could  not  interfere  without  the  consent  of  the 
corporation.  No  other  instance  of  any  attempt  of  the  Idnd 
is  known,  or  believed  to  exist,  in  relation  to  Harvard  College 
or  any  other  institution  of  the  kind  in  the  Commonwealth. 


162  DABIMOUTH  COLLEGE  CAUSES. 

*'  It  is  said  that  the  Legislature  of  N.  H.  has  often  inter- 
fered in  regulating  and  altering,  charters  of  this  kind  ;  & 
allusion  is  made  to  acts  of  the  Legislature  in  altering  & 
dividing  towns  in  the  State.  It  should  be  remembered  that 
towns  are  corporations  of  a  very  different  nature,  &  for 
different  purposes  from  those  for  which  academies  and  col- 
leges are  incoi-porated  ;  &  though  they  are  corporations  for 
certain  particular,  &  limited  purposes  ;  yet  they  are  rather 
to  be  regarded  as  civil  divisions  of  the  State  for  the  purpose 
of  government.  The  charters  of  the  respective  proprie- 
taries erecting  the  territory  into  towns,  declares  that  the 
inhabitants  possessing  them,  shall  have  and  enjoy  certain 
privileges  ;  &  in  general  terms,  all  the  privileges  which  are 
enjoyed  by  other  towns  in  the  province  :  leaving  it  for  the 
Legislature  to  make  such  divisions,  and  confer  such  powers 
&  privileges  as  shall  best  conduce  to  the  purposes  of  civil 
government.  It  is  true,  that  they  may  hold  property  for 
certain  limited  purposes  ;  yet  this  is  not  the  great  object  of 
their  incorporation  ;  the  great  end  of  these  territorial  divi- 
sions of  the  State  into  townships  with  limited  corporate 
powers,  is  to  facilitate  among  the  people  the  purposes  of 
self-government,  &  to  aid  in  the  government  of  the  State  ;  & 
their  officers,  though  elected  by  the  people  of  particular 
districts,  are  yet  civil  officers,  &  properly  officers  of  the 
State  ;  to  resist  them,  therefore,  in  the  discharge  of  their 
duties,  is  to  resist  the  constituted  authorities  of  the  State  ; 
&  it  is  an  indictable  offense.  But  it  is  not  so  with  officers 
of  other  corporations,  they  are  left  to  their  civil  remedies 
like  other  individuals  —  accordingly  the  Constitution 
adopted  by  the  people,  in  defining  the  powers  of  the  Gen- 
eral Court,  has  enabled  that  body  '  to  name  and  settle 
annually  or  provide  by  fixed  laws  for  the  naming  &  settling 
all  civil  officers  within  the  State ;  such  officers  excepted,, 
the  election  and  appointment  of  whom  are,  hereafter,  in 
this  form  of  government  otherwise  provided  for.  (See 
Constitution,  p.  43.) 

"  "Wlien  we  turn  to  the  power  of  appointment  by  the  irov- 


marsh's  argument.  163 

ernor  &  council  (p.  51)  we  find  that  '  all  judicial  officers, 
the  attorney-general,  solicitors,  all  sheriffs,  registers  of 
probate,  &  all  officers  of  the  navy,  &  all  general  &  field 
officers  of  the  militia,  shall  be  appointed  by  the  governor  & 
council,'  clearly  comprehending  all  the  officers  of  the  gov- 
ernment except  town  officers,  who  are,  therefore,  tlie  civil 
officers  whose  appointment  is  left  to  be  provided  for  by  the 
Legislature.  Hence  it  is  evident  that  towns  are  not,  strictly 
speaking,  corporations  ;  but  mere  civil  divisions  of  the  ter- 
ritory of  the  State,  for  the  purpose  of  governing  them- 
selves to  a  certain  extent ;  &  aiding  in  the  government,  & 
administration  of  the  laws  of  the  State  —  and  again,  though 
in  some  respects,  they  are  corporations  ;  yet  they  have  not 
strictly  spealdng,  perpetual  succession  ;  or,  in  other  words, 
their  perpetuity  does  not  depend  on  any  acts  of  their  own, 
as  electing  their  successors,  or  officers,  &  the  like  ;  they  can 
neither  make  common  nor  disfranchise  any  member  of  their 
own  body  ;  but  any  person,  coming  to  reside  within  their 
respective  limits  becomes,  of  course,  a  member  of  the  cor- 
poration to  every  intent  for  which  they  are  such  ;  in  other 
words,  certain  privileges  are,  by  the  charters  of  the  respec- 
tive towns,  &  by  the  laws  of  the  State,  granted  to  the  per- 
sons who  may  come  to  reside  on  particular  portions  of  the 
territory  of  the  State  ;  &  these  privileges  happen  in  some 
respects,  but  in  ver.y  few,  to  be  such,  as  are  incident  to  cor- 
porations generally  ;  &  yet,  in  every  other  respect,  they  are 
mere  civil  divisions  of  the  State  ;  &,  perhaps,  necessarily, 
liable  to  division,  or  other  variations  by  the  laws  of  the 
State,  as  will  best  answer  the  purposes  for  which  they  were 
made  ;  &  indeed  are  made  subject  to  those  things  by  their 
own  consent  in  the  adoption  of  the  Constitution  —  all  these 
privileges  are  given  &  regulated  by  statute,  &  are  not  to  be 
regarded  as  grants  ;  but  as  mere  municipal  regulations  to  be 
varied  at  the  discretion  of  the  Legislature,  not  interfering 
with  any  constitutional  principles. 

"  The  very  terms  of  the  charters  of  N.  H.  imply  this,  & 


164  DAKTMOUTH  COLLEGE  CAUSES. 

no  more  ;  '  and  the  same  be,  &  is  hereby  incorporated  in  a 

township  by  the  name  of &  the  inhabitants  that  do  or 

shall  hereafter  inhabit  the  said  township,  are  hereby  declared 
to  be  enfranchised  with  &  entitled  to  all  &  every  the  privi- 
leges &  immunities  that  other  towns,  within  our  province, 
6y  laWy  exercise  &  enjoy.'  The  first  essential  ingredient  in 
a  corporation  is  '  to  have  perpetual  succession  —  this  is  the 
very  end  of  its  incorporation  ;  for  there  cannot  be  a  suc- 
cession, forever,  without  an  incorporation  ;  &  therefore,  all 
aggregate  corporations  have  a  power,  necessarily  implied,  to 
elect  members  in  the  room  of  such  as  go  off.'  (1  Bla. 
Comm.  502.) 

"  Towns  having  no  such  power,  are  not  therefore,  in  any 
strict  sense  corporations.  (1  Roll.  Abr.  514,  4th  Com.,  F 
10.) 

"  Again,  if  it  were  otherwise  ;  if  they  were  in  the  strict- 
est sense  corporations  ;  yet,  dividing  the  town  into  two, 
might  be  considered  only  as  creating  a  new  corporation,  out 
of  the  members  of  an  old  one  ;  &  perhaps,  even  then  the 
inhabitants  would  not  be  bound  to  accept  the  privilege 
granted  by  the  act  making  the  division  ;  but  might,  if  they 
preferred  it,  remain  as  before —  certainly  they  might  do  so 
if  they  are  to  be  regarded  as  corporations  in  these  respects — 
and  it  is  believed  that  no  Legislature  has  ever  interfered 
in  any  case  of  the  kind,  except  at  the  request  of  those  who 
were  supposed  to  be  benefitted  by  the  alteration  ;  or  who 
were  to  compose  the  new  corporation.  It  may  now  be 
asked,  in  what  part  of  the  Constitution  is  the  General  Court 
empowered  to  interfere  with  corporations  at  that  time  exist- 
ing ;  or  to  provide  for  the  appointment  of  their  members  or 
officers.  The  subject  is  nowhere  mentioned  ;  &  it  is  certain 
that  the  idea  of  confering  such  power  never  entered  into  the 
minds  of  the  framers  of  that  instrument.  Will  any  one 
then  have  the  boldness  to  say  that  they  conferred  powers, 
which  they  did  not  intend  to  confer  ;  &  that,  in  relation  to 
a  subject  which  the}^  have  not  even  mentioned  ;  &  all  this  in 


marsh's  argument.  165 

an  instrument  in  which  they  were  professedly  defining  & 
bestowing  the  powers  of  the  respective  branches  of  the  gov- 
ernment ;  &  using  every  exertion  &  expression  to  make  & 
keep  each  of  them  distinct. 

"It  is  recollected  that  in  one  article  of  the  Constitu- 
tion it  is  expressly  made  '  the  duty  of  the  Legislature  and 
magistrates,  in  all  future  periods  of  the  government,  to 
cherish  the  interests  of  literature  &  the  sciences  &  all  semi- 
naries &  public  schools ;  to  encourage  public  and  private 
institutions,  by  reward  and  immunities,  for  the  promotion 
of  agriculture,  arts,  sciences,  commerce,  trades,  manufac- 
tures, &  natural  history  of  the  country,'  &c. 

"This  seems  mostly  to  relate  to  institutions  then  in 
existence,  &  is  so  far  from  giving  countenance  to  rude 
attempts,  hkethe  present,  to  take  away  the  rights,  property, 
&  privileges  of  those  institutions,  &  confer  them  on  others 
for  personal •&  party  purposes,  that  it  indeed  holds  a  very 
different  lano;uao-e.  It  is  observable  that  it  confers  the  same 
duties  on  magistrates  as  on  legislators  ;  and  it  is  merely  to 
foster  &  encourage,  &  not  to  interfere  with  their  internal 
concerns  ;  or  to  vary  without  their  consent  the  structure  of 
their  policy  or  government. 

' '  In  all  the  authorities  which  are  to  be  found  on  this  sub- 
ject, there  is  not  a  solitary  instance  to  be  found  of  any  inter- 
ference by  the  government,  which  can,  at  all  compare  "with 
the  present  attempt,  either  in  point  of  principle  or  extent, 
where  the  government  has  without  the  consent  of  the  cor- 
poration endeavored  to  change  the  principles,  or  take  away 
the  property  or  privileges  of  an  institution  of  this  kind —  and 
if  there  were  precedents  of  this  kind,  by  the  omnipotent 
Parliament  of  G.  Britain,  would  it  follow  that  the  general 
court  of  N.  H.  vnih.  its  derivative  powers  limited  &  restricted 
by  the  terms  of  the  Constitution,  could  do  the  same  thing? 

"It  seems  to  be  a  point,  perfectly  agreed  &  settled  in 
all  authorities,  that  the  grantees  in  any  charter  of  incorpo- 
ration, cannot  be  compelled  to  become  a  cori3oration  without 


166  DARTMOUTH  COLLEGE  CAUSES. 

their  own  consent —  1  Salk.  168  is  in  point.  S.  Eyre,  J., 
held  '  that  the  corporation  would  not  be  divested  of  former 
rights  ;  but  by  surrender  or  forfeiture  —  G.  E}Te  &  Holt,  J., 
that  the  king  cannot  resume  an  interest  he  has  already 
granted,  unless  the  grantee  concur  —  but  in  this  case  the 
corporation  had  concurred  by  accepting  a  new  charter,'  in 
other  words,  by  acting  under  it  —  and  accordingly  in  all  the 
pleadinjis  in  cases  of  quo  warranto,  where  the  members  are 
officers  of  corporations,  undertake  to  justify  acting  as  such 
under  a  charter,  the  pleadings  always  allege  an  acceptance 
thereof  by  the  grantees  —  In  Rex  v.  Richardson,  1  Bur. 
517  ;  King  v. ,  3  D  Term  Rep.  199. 

' '  If  therefore  individuals  cannot  be  compelled  to  take  on 
themselves  corporation  powers,  so  neither  can  an  existing 
corporation  be  compelled  to  accept  any  additional  grant  of 
powers  or  privileges  ;  nor  can  it  be  compelled  for  the  same 
reason  to  submit  to  any  restriction  which  may  be  imposed. 
The  King  &  Queen  v.  Larwoad,  1  Salk.  168,  is  directly  in 
point. 

"  The  foregoing  remarks  &  references  were  made  nearly 
a  year  ago  ;  and  are  now  deemed  of  no  importance  except 
for  the  purpose  of  facilitating  a  recurrence  to  authorities  — '■ 
since  that  time  the  case  of  Fletcher  v.  Peck,  in  6th  of 
Cranch  ;  &  New  Jersey  v.  Wilson,  in  7th  of  Cranch,  have 
been  consulted,  and  are  deemed  to  be  decisions  in  point.  — 
16th  May,  1817. 

' '  Beside  the  authorities  referred  to  — 

"  Colchester  v.  Seaber,  3d  Bur.  1866  ; 

*'  Milton  V.  Spateman,  1  Wm.  Saund.  342; 

*'  Lutterell's  Case,  4  Co.  87,  2d  vol.  of  octave  edition,  86. 

"  4  Com.  Title  Franchise  (F.  30),  e^  seg.,  page  267  ; 

"  Baggs'  Case  XI.  Co.  99,  vol.  6,  same  edition  93,  may 
be  consulted  with  advantage." 


CHAPTER    YI.  — CoNTmuED. 

Harvard  University  was  chartered  in  1636.  The  act  of 
1642  made  the  governor,  deputy-governor,  president  of  the 
college,  magistrates,  teaching  elders,  etc.,  members  of  the 
Board  of  Overseers.  When  the  Constitution  of  the  State 
was  formed,  the  University  was  put  under  the  protection  of 
the  State  by  virtue  of  certain  provisions  incorporated  therein  ; 
and  the  grant  of  1636  was  "ratified  and  confirmed ' '  thereby, 
with  the  proviso  "  that  nothing  herein  shall  be  construed  to 
prevent  the  Legislature  of  this  Commonwealth  from  making 
such  alterations  in  the  government  of  the  said  University  as 
shall  be  conducive  to  its  advantage,  and  the  interest  of  the 
republic  of  letters,  in  as  full  a  manner  as  might  have  been 
done  by  the  Legislature  of  the  late  Province  of  the  Massa- 
chusetts Bay." 

Judge  Parsons  became  a  Fellow  of  Harvard  in  1806. 
Soon  after,  he  framed  a  law  making  the  alterations  in  the 
charter  contemplated  by  the  eminent  jurist  who  penned  the 
proviso.  The  bill  passed,  March  6,  1810  ;  was  formally 
accepted  by  the  corporation,  March  16,  1810,  and  by  the 
Board  of  Overseers ,  April  12, 1810.  This  act  was  repealed, 
and  the  old  board  restored,  by  the  act  of  February  29,  1812. 
In  1814,  this  repealing  act  was  repealed,  and  the  act  of 
1810  revived,  with  the  proviso  that  the  Senate  should  be 
added  to  the  thirty  elective  members  for  which  the  act  pro- 
vided. 

From  the  time  he  became  a  Fellow,  till  shortly  before  his 
death.  Parsons  was  the  controlling  spirit ;  and  during  the 
troubles  which  followed  the  passage  of  the  act  of  1810, 
argued  the  cause  of  the  University. 

(167) 


168  DARTMOUTH  COLLEGE  CAUSES. 

The  counsel  for  the  trustees  in  the  Dartmouth  Colleg-e 
case  were  as  familiar  with  the  history  of  the  troubles  at 
Harvard,  and  the  argument  of  Parsons,  as  Story. 

We  copy  from  the  identical  minutes  of  Marsh,  and  the 
dim,  time-stained  argument  of  Parsons,  used  by  Judge 
Smith  and  his  eminent  associates  in  preparing  their  argu- 
ments in  Judge  Woodward's  case. 

The  aroument  of  Parsons  "  as  to  visitors  of  Harvard  Col- 
lege,"  according  to  the  filing  of  Judge  Smith,  is  as  fol- 
lows :  — 

"1.  The  office  of  Visitor. 

"2.  His  power  &  duties, 

"  3,  Who  is  the  visitor  of  Harvard  College? 

*'  4.  The  extent  of  the  power  reserved  to  the  Legislature 
in  the  Constitution  of  the  Commonwealth  to  alter  the  Gov't 
of  the  College  in  as  full  a  manner  as  it  could  have  been 
altered  by  the  Legislature  of  the  Province. 

"1.  The  office  of  Visitor  is  at  common  law  arising  from 
the  lawful  endowment  of  any  charity  either  by  the  Sovereign 
or  any  private  person. 

"  If  a  private  person  endow  a  charity  it  is  inherent  to  his 
right  of  property  to  determine  to  what  uses  and  in  what 
manner  the  charity  may  be  applied,  and  for  these  purposes 
provision  may  be  made  by  his  own  statutes  which  are  con- 
sidered as  the  foundation  of  the  endowment.  He  may  ap- 
point a  Visitor  to  see  that  these  statutes  are  duly  executed. 
If  the  founder  do  not  appoint  a  Visitor  he  and  his  heirs  are 
of  course  Visitors.  When  the  founder  has  made  the  endow- 
ment of  his  charity  and  appointed  a  Visitor  he  after  that 
ceases  to  have  any  control  over  it  his  property  having  vested 
in  the  grantees,  subject  to  the  visitation  of  the  Visitor  whom 
he  has  desiirnated  &  who  is  substituted  in  the  room  of  the 
founder.  He  can  therefore  provide  no  new  statutes  alter- 
ing the  former  uses  of  his  donation,  unless  he  has  reserved 
such  power  to  himself  in  Ms  original  foundation,  nor  can  he 


HARVARD parsons' 8    ARGUMENT.  1()9 

i-evoke  the  visitatorial  power  which  he  has  delegated  ;  as  it 
may  affect  the  interest  which  is  vested  in  the  grantees.  But 
the  founder  not  having  appointed  a  Visitor  may  with  the 
assent  of  the  grantees  make  what  alterations  may  be  thought 
proper  in  the  appropriation  of  his  own  donation,  but  not  in 
donations  made  to  the  same  charity  by  other  persons  who 
have  expressly  limited  their  uses  and  alterations  may  also 
be  made  in  the  power  of  visitation  by  authority  of  the  Leg- 
islature and  by  consent  of  the  grantees  and  the  visitor  who 
so  far  stands  in  the  place  of  the  founder. 

"  2.  The  power  and  duties  of  the  visitor  are  incident  to 
him  at  common  law,  subject  to  the  restrictions  and  qualifi- 
cations pointed  out  by  the  statutes  of  the  founder.  It  per- 
tains to  the  office  of  visitor  to  see  that  the  statutes  of  the 
founder  are  executed  and  also  to  exercise  such  powers  as 
result  from  his  will.  If  the  founder  instead  of  framing  par- 
ticular statutes  for  the  management  of  his  donation  should 
authorize  the  corporation  in  whom  the  same  is  vested  to 
make  by  laws  for  carrying  into  effect  and  regulating  the 
charity  with  the  assent  of  the  visitor  then  such  by  laws 
have  the  force  of  the  statutes  made  by  the  founder. 

"  3.  The  visitor  of  H.  College.  No  visitor  of  Harvard 
CoUesre  can  be  considered  as  existing  until  a  donation  was 
made  by  some  person  or  public  body  for  the  purpose  of 
foundins:  the  College  and  such  donation  cannot  be  made  till 
there  are  proper  persons  to  take  the  same.  The  General 
Court  appropriated  property  for  the  purpose  of  founding 
a  College ;  but  did  not  grant  the  same  to  any  persons 
whatever  the  property  remaining  the  property  of  the 
colony  and  being  managed  by  a  Committee  appointed  by 
the  General  Court. 

"  This  Committee  being  found  an  inconvenient  body  the 
Court  give  the  trust  to  the  Governor,  Deputy  Governor  and 
magistrates  &  the  teaching  elders  of  the  six  neighbouring 
towns  by  the  name  of  overseers,  with  power  to  manage  the 


170  DARTMOUTH  COLLEGE  CAUSES. 

funds  subject  to  the  will  of  the  donors.  In  the  act  appoint- 
ing the  overseers  it  is  ordained  that  the  greater  number 
present  at  any  meeting  the  number  necessary  to  constitute 
a  meeting  not  being  prescribed  may  make  &  establish  any 
orders,  statutes  &  constitutions  subject  however  to  an  appeal 
to  th^e  whole  body  of  overseers,  who  if  they  refuse  to  sus- 
tain such  appeal  or  act  thereon  shall  stand  accountable  to 
the  next  General  Court. 

' '  Soon  after  the  Creation  of  the  overseers  on  application 
of  Mr.  H.  Dunster  the  President  of  the  College  the  General 
Court  w^ere  induced  to  take  measures  for  founding  a  College 
by  constituting  a  Corporation  in  whom  was  invested  the 
property  belonging  to  the  College  with  power  to  manage 
the  same  agreeably  to  the  will  of  the  donors  and  for 
that  purpose  to  make  orders  and  by  laws,  but  which 
were  of  no  force  until  allowed  by  the  overseers.  The  last 
provision  being  supposed  to  be  impracticable  in  the  Govern- 
ment of  the  College  the  Corporation  did  not  exercise  their 
powers  until  the  granting  an  additional  Charter  in  1657  (  ?) 
after  this  the  College  appears  to  be  completely  founded 
having  a  corporation  in  whom  the  funds  vested  with  a  power 
to  make  orders  and  by  laws,  so  that  the  will  of  the  donor 
was  observed  and  subject  to  the  control  of  the  overseers,  as 
a  board  of  Visitors,  M^ho  might  disallow  the  orders  and  by 
laws  made  by  the  corporation.  The  General  Court  of  the 
Colony  therefore  were  the  founder  of  the  College  and 
instead  of  forming  particular  statutes  for  the  college  which 
they  founded  they  constituted  a  Corporation  with  power  to 
make  orders  and  by  laws  for  the  government  of  the  College 
compatible  with  the  will  of  any  donor  &  subject  to  the  dis- 
allowance of  the  overseers.  And  the  doings  of  a  meeting 
of  the  overseers  called  by  notice  to  those  members  living 
in  the  six  neighbouring  towns  are  by  the  last  Charter  or 
appendix  of  1657  finally  valid  ^dthout  any  ultimate  Control 
being  reserved  to  the  General  Court. 


ARGUMENT    OF    JUDGE    PARSONS.  171 

♦ '  The  Governors  or  Overseers  appointed  to  any  Chari- 
table institution  by  the  founder  are  in  fact  the  visitors 
thereof  although  they  may  not  be  designated  by  the  name 
of  Visitors.  The  College  as  observed  now  appears  to  be 
regularly  founded  having  a  Corporation  to  take  and  manage 
the  property,  subject  to  visitors  specially  appointed  by  the 
founder,  who  has  parted  not  only  with  his  property  but  with 
all  control  over  it.  What  control  however  the  General 
Court  of  the  old  Colony  of  Massachusetts  Bay  might  in 
fact  claim  or  exercise  either  over  the  funds,  which  they 
had  given  away  or  the  visitatorial  power  which  they  had 
parted  with  it  is  not  now  necessary  to  inquire.  It  is  suf- 
ficient to  say  that  this  foundation  with  this  visitatorial  power 
existed  so  long  as  that  General  Court  —  that  the  Court 
never  did  in  fact  repeal  or  annul  this  foundation  or  revoke 
the  power  of  visitation  constituted  as  here  mentioned.  The 
occasional  interference  of  the  Colonal  General  Court,  after 
the  foundation  was  practised  either  with  the  assent  of  the 
College  or  is  to  be  considered  as  an  assumption  of  power 
not  belonging  to  it  for  in  fact  that  Court  claimed  to  exer- 
cise all  the  powers  of  Gov't  Legislature  Executive  and 
judicial. 

' '  Upon  the  repeal  of  the  old  Colony  Charter  &  the  grant- 
ing of  the  Provincial  Charter  the  Governor  Deputy  Gov. 
&  magistrates  were  succeeded  by  the  Gov'r  Lieut  Govr 
and  Council  as  their  successors  in  oflSce  and  the  power  of 
Visitation  remained  in  the  same  body  until  new  successors 
were  appointed  by  the  Constitution  notwithstanding  several 
attempts  to  give  the  college  a  new  foundation  were  made  by 
the  interests  of  its  friends  with  the  concurrence  of  the  Col- 
lege. 

"4.  What  power  the  Legislature  of  the  Province  had  to 
alter  the  Govt  of  the  College  requires  now  to  be  considered. 
The  Charter  that  gave  existence  to  the  Provincial  Legisla- 
ture by  confirming  the  property  of  the  College  necessarily 


172  DARTMOUTH  COLLEGE  CAUSES. 

confirmed  the  College  and  confirmed  the  property  in  the 
College  by  such  tenure  &  on  such  conditions  as  those  by 
which  it  was  before  holden,  one  of  which  was  to  be  subject 
to  a  controul  in  the  disposition  of  that  property  by  a  body 
of  visitors  and  their  successors  appointed  by  the  founder. 
If  the  Legislature  had  any  authority  to  alter  the  Gov't  of 
the  College  without  the  consent  of  the  visitors  and  corpo- 
ration it  must  be  either  by  virtue  of  some  visitatorial  power 
remaining  in  it  or  by  some  judicial  act  to  be  passed  by  it  or 
by  its  Legislative  authority.  As  to  its  having  visitatorial 
power  remaining,  there  is  no  color  for  it,  as  the  founder 
reserved  none  to  himself — as  to  a  Judicial  act  the  Pro- 
vincial Legislature  were  not  competent  to  pass  any  no 
judicial  power  having  been  granted  in  the  Charter.  If, 
therefore,  the  Legislature  could  alter  the  Gov't  of  the  Col- 
lege it  must  be  by  virtue  of  its  Legislative  authority.  The 
Legislative  power  of  every  State  must  be  such  as  it  can  law- 
fully exercise  according  to  its  constitution  not  a  mere  arbi- 
trary or  despotic  will  which  may  prevail  because  power  is 
not  synonymous  with  right. 

' '  It  will  not  be  pretended  that  the  Legislature  could  divest 
the  Corporation  of  the  property  given  it  by  the  founder  and 
other  donors,  nor  will  it  be  contended  that  the  Legislature 
by  any  lawful  act  could  alter  the  uses  for  which  the  prop- 
erty was  so  given  or  by  repealing  the  Charter  of  incorpora- 
tion could  defeat  all  those  donations  and  render  them  void 
or  could  alter  the  constitution  of  the  Corporation  by  adding 
to  its  members  or  changeing  its  powers  ;  for  if  this  were 
admitted  they  might  virtually  repeal  the  Charter  of  incor- 
poration which  vests  the  property  and  the  powers  therein 
designated  in  the  corporation  and  their  successors  the  law  of 
succession  being  established  in  the  Charter. 

"It  remains  to  consider  whether  without  consent  the 
Legislature  could  rightfully  change  the  visitors  of  the 
College    and  appoint  new   visitors  not  appointed   by  the 


ARGUMENT    OF    JUDGE    PARSONS.  173 

founder.  The  founder  had  the  same  power  at  law  to  appoint 
visitors  of  his  Charity  that  he  had  to  make  the  donation  and 
prescribe  the  use,  and  the  visitors  have  in  them  a  vested 
right  of  visitation  of  which  they  cannot  be  deprived  without 
their  consent  any  more  than  of  any  other  vested  right.  The 
Corporation  also  have  an  interest  in  the  exercise  of  the  right 
because  by  the  exercise  of  it  can  the  powers  of  the  corpora- 
tion alone  be  controlled.  And  it  may  be  supposed  that  a 
corporation  might  be  willing  to  take  the  management  of  a 
Charity  subject  to  a  particular  visitation  which  they  might 
refuse  under  another  visitation  as  well  as  that  donors  might 
be  induced  from  confidence  in  the  existing  visitatorial  power 
to  make  donations  which  otherwise  they  might  decline. 
The  visitatorial  power  is  therefore  so  connected  with  the 
Charity  of  its  management  that  it  seems  impossible  that  the 
Legislature  can  have  a  power  over  the  former  without  having 
it  over  the  latter  which  is  not  contended.  But  if  the  visitors 
and  Corporation  are  disposed  to  consent  to  a  substitution  of 
other  persons  as  visitors  yet  it  cannot  be  done  unless 
authorized  by  the  Legislature  but  being  so  authorized  it  may 
lawfully  be  done  because  it  is  done  by  the  consent  of  all  the 
parties  interested.  If  however  the  doctrine  should  be 
admitted  that  the  Provincial  Legislature  had  the  singular 
power  of  altering  the  Government  of  the  College  without 
consent  yet  if  instead  of  exercising  that  power  they  had  in 
fact  introduced  into  the  visitation  new  visitors  with  the  con- 
sent of  the  former  visitors  and  the  Corporation  it  is  extremely 
difficult  to  conceive  by  what  legitimate  authority  the  Legis- 
lature could  afterwards  deprive  those  ncAV  Visitors  of  the 
rights  of  Visitation  thus  lawfully  vested  in  them.  To  admit 
this  power  of  deprivation  thus  exercised  would  be  giving  to 
the  Provincial  Legislature  greater  power  than  they  would 
have  possessed  if  they  had  been  founders  of  College  &  at  the 
foundation  had  specially  appointed  as  Visitors  the  persons 
thus  deprived.  Admitting  therefore  the  power  reserved  to  the 
Legislature  of  making  such  alteration  in  the  Government  of 


174  DARTMOUTH  GOLLEGK  CAUSES. 

the  College  as  could  have  been  made  by  the  Legislature  of 
the  late  Province  of  Massachusetts  Bay  yet  under  this  admis- 
sion no  alteration  could  be  made  in  the  Government  but 
with  consent  of  the  overseers  &  Corporation  and  but  for 
the  reservation  in  the  proviso  no  alteration  could  ever  be 
made  even  with  consent  as  it  would  have  been  deemed 
repugnant  to  the  Constitution  which  established  absolutely 
the  Government  of  the  College." 

Two  things  are  especially  noticeable  in  this  argument  of 
Parsons  :  From  his  intimate  acquaintance  with  Dane,  the 
history  of  the  times,  and  the  great  men  who  participated  in 
the  Federal  Convention,  no  man  in  Massachusetts  was  more 
capable  of  comprehending  the  meaning  of  the  obligation 
clause  than  he  ;  yet  he  passed  it  by  in  this  argument  as  if  the 
thought  never  occurred  to  him  that  it  had  any  application. 
The  other  is,  that,  independent  of  the  proviso,  the  charter 
could  not  be  altered  by  the  Legislature,  even  with  the  con- 
sent of  the  overseers  and  corporation. 

The  clergymen  of  the  "  standing  order,"  with  a  portion 
of  the  old  trustees  and  the  faculty,  swarmed  from  their  Gen- 
eral Association  into  the  Exeter  court-room.  The  argument 
lasted  two  days  :  Mason  speaking  two  and  Smith  four  hours 
for  the  trustees  ;  Sullivan  and  Bartlett  occupied  three  hours 
the  next  day,  in  reply ;  Webster  occupied  less  than  two 
hours  in  closing  the  case  for  the  trustees.  None  of  these 
were  taken  down  in  short-hand,  but,  as  afterwards  written 
out  from  the  copious  minutes  and  notes  of  counsel,  or  other- 
wise, and  in  some  instances  revised,  were,  except  Webster's, 
reported  by  Judge  Farrar.  They  occupy  about  one  hun- 
dred and  eighty  pages  in  Farrar' s  report,  —  of  which  forty- 
three  pages  were  assigned  to  Mason,  who  was  always 
comparatively  brief;  fifty-six  pages  to  Smith,  thirty-four 
pages  to  Sullivan,  and  forty-six  pages  to  Bartlett. 

Probably  in  consequence  of  this  revision,  arguments  on 
one  side  were  sometimes  omitted,  while  the  replies  were 
given.     Judge    Smith,  in  a  memorandum  made  February 


ARGUMENT    AT    EXETER FARRAR'S    REPORT.  175 

28,  1824,  says  that  he  destroyed  ou  that  day,  "  the  minutes 
prepared  for  &  used  in  argument  at  Haverhill,  May,  1817, 
and  at  Exeter,  September,  1817,  in  addition  to  those  in  this 
file." 

"  In  preparing  argument  for  T.  Farrar's  Vol.,  J.  S.  [Judge 
Smith]  freely  used  a?^  his  minutes  and  recollection  —  sub- 
stance same,  tho'  method  often  changed  —  some  things 
omitted,  &c." 

In  his  letter  to  Farrar,  of  May  18,  1819,  Webster  says : 
"As  to  Ichabod's  [Bartlett's]  argument,  I  am  decidedly 
of  opinion  that  I  would  not  i^ublish  any  abuse  of  the 
Trustees,  or  of  any  of  the  counsel.  If  he  has  not  decency 
enough  to  leave  such  slang  out,  I  would  not  publish  his 
argument,  —  and  if  necessary,  I  would  state  the  reason  in 
a  note.  As  to  mere  nonsense  &  stuff,  I  w'd  publish  it; 
but  nothing  in  any  degree  personal  or  injurious  to  counsel 
or  parties.  You  must  show  the  creature  to  Mr.  Mason  — 
&  you  &  he  must  persuade  Bartlett  to  leave  out  what  is 
objectionable.  He  ought  to  see  the  propriety  of  following 
Mr.  Sullivan's  example  in  that  respect. 

"  It  would  of  course  be  very  desirable  to  have  his  argu- 
ment printed,  &  I  think  a  little  soft  persuasion  will  bring 
him  to  have  it  put  right.  Ch.  Jus.  Eichardson,  I  should 
think,  would  not  wish  that  slang  should  appear  as  the 
argument  in  his  court. 

"50  to  60  pages  ;  Good  Heavens  !  And  all  slang.  Do 
ojet  it  abridged.  D.  W." 

Those  who  have  read  the  letters  of  Thompson  to  Adams, 
and  Dunham  and  Wheelock  to  Webster,  and  understood  the 
peculiar  relations  which  subsisted  between  Wheelock  and 
Webster  in  1815,  can  hardly  fail  to  perceive  to  what  re- 
marks "personal  or  injurious  to  counsel"  Mr.  Webster 
referred. 

Farrar's  report  probably  shows,  fairly  enough,  the  gen- 
eral course  of  the  arguments.  We  have,  besides,  the  short 
notes  of  all  the  arguments,  as  taken  down  by  Mr.  Webster 


176  DARTMOUTH  COLLEGE  CAUSES. 

with  his  own  hand  in  the  Exeter  court-room,  which  lie 
before  us  as  we  write.  No  summary  would  do  them  justice, 
but  an  outline  of  them  may  be  useful. 

Mason's  points,  as  stated  by  himself,  were  :  "  That  these 
acts  are  not  obligatory  ;  1 .  Because  they  are  not  within  the 
general  scope  of  legislative  power  ;  2 .  Because  they  violate 
certain  provisions  of  the  Constitution  of  this  State  restrain- 
ing the  legislative  power  ;  3.  Because  they  violate  the  Con- 
stitution of  the  United  States."  In  Farrar's  report,  Mason 
devotes  twenty-three  pages  to  his  first  point,  eight  to  the 
second,  and  six  to  the  third. 

1 .  He  urged  that  ' '  the  only  division  of  corporations  ma- 
terial to  the  present  enquiry,  is  that  of  civil  and  eleemosy- 
nary ;"  that  the  trustees  constituted  an  eleemosynary  cor- 
poration ;  that  towns  were  civil  ' '  cori3orations  of  a  peculiar 
kind  ;"  that  the  Legislature  cannot  "rightfully  take  from  any 
such  corporation  its  property,  and  transfer  it  to  another  ; ' ' 
that  "  something  similar  to  these  are  incorporated  cities." 
"  But  where  there  is  a  special  grant  of  peculiar  privileges, 
the  legislative  power  to  new  model  or  control  them,  if 
admitted  at  all,  must  be  with  great  limitation.  The  Legis- 
lature cannot  abolish  such  corporations,  or  do  anything 
equivalent  to  it.  As  far  as  the  privileges  are  peculiar,  and 
such  as  cannot  be  affected  by  a  general  law,  applicable  to 
all,  it  is  not  easy  to  see  on  what  principles  they  can  be 
essentially  changed  or  altered  by  a  special  act  of  the  Legis- 
lature ;  "  that  the  College  "  is  clearly  an  eleemosynary  cor- 
poration, and  of  consequence,  a  private  corporation." 

He  conceded  "that  the  British  Parliament  can,  as  it  is 
held,  abolish  corporations.  So  it  can  pass  acts  of  attainder, 
and  of  pains  and  penalties.  But  neither  can  be  done  by  vir- 
tue of  the  ordinary  and  legitimate  legislative  power  which 
belongs  to  our  Legislature.  According  to  the  theory  of  the 
British  government,  the  Parliament  is  omnipotent.  '  A  cor- 
poration may  be  dissolved  by  act  of  Parliament,  which  is 
boundless  in  its  opejrations.'  " 


mason's    argument    at    EXETER.  177 

"  Will  it  now  be  asserted  that  the  British  Parliament  or 
king,  or  both  united,  were  competent  to  abolish  or  new 
model  the  colonial  charters  ?  If  it  could  be  done  b}^  legisla- 
tive power  alone,  they  might,  for  they  possessed  the  whole 
legislative  power  over  that  subject-matter."  "  The  Parlia- 
ment of  Great  Britain  had  no  rightful  power  whatever  over 
this  corporation.  The  Legislature  of  this  State  succeeded 
to  all  the  power  which  the  king,  who  granted  the  charter, 
had,  and  to  no  more." 

"In  England  the  creating  of  corporations  appertains  to 
the  king,  and  he  has  all  the  legitimate  power  that  exists 
for  dissolving  them,  except  what  is  vested  in  the  judicial 
courts." 

"  But  the  king  cannot  abolish  a  corporation,  or  give  it  a 
new  organization,  or  alter  any  of  its  powers  or  privileges, 
without  its  consent." 

"As  successors  to  the  king,  then,  the  Legislature  have  no 
power  to  pass  the  acts  in  question,  and  it  may  be  safely 
asserted  that  before  the  change  in  the  form  of  government, 
the  plaintiffs  could  not  have  been  rightfully  deprived  of 
their  property  or  privileges,  without  a  trial  in  due  course 
of  law." 

"  It  is  of  no  consequence,  as  it  respects  the  right,  whether 
the  privileges  granted  to  the  plaintiffs  by  their  charter  are 
valuable,  in  a  pecuniary  point  of  view,  or  otherwise."  He 
then  relies  upon  the  opinion  in  Calder  v.  Bull,  3  Dall.  383, 
that ' '  the  nature  and  ends  of  legislative  power  will  limit  the 
exercise  of  it." 

2.  That  these  acts  were  prohibited  by  Art.  XV.,  the  per 
legem  terrae  clause.  Art.  XXIII. ,  which  prohibits  the  passage 
of  "retrospective  laws,"  and  Art.  XXXVII.  of  the  Bill  of 
Rights  of  New  Hampshire,  which  declares  that  the  three 
essential  powers  of  government  ought  to  be  kept  separate. 

3.  That  the  grant  was  "  a  contract  "  under  the  clause  in 
the  Federal  Constitution,  and  not  a  law.  That  "  there  can 
be  no  doubt  that  there  were  competent  parties  to  the  con- 


178  DARTMOUTH  COLLEGE  CAUSES. 

tract,  —  the  Idiig,  of  one  side,  and  the  trustees  named  in  the 
charter,  of  the  other." 

Judge  Smith  urged  that  the  change  of  name  was  a  viola- 
tion of  "  chartered  rights."  That  "  here,  too,  the  change 
of  name  seems  to  indicate  a  change  in  the  nature  of  the 
body  ;  for,  upon  the  principles  of  the  common  law,  an  uni- 
versity on  the  model  of  those  at  Oxford  and  Cambridge  is 
a  civil,  while  a  college  is  an  eleemosynary  corporation." 
He  enforced  the  same  views  as  Mason,  and  commented  at 
length  upon  Phillips  v.  Bury,  and  other  cases  relied  upon 
in  the  opinion  of  Judge  Story.  He  said,  "  It  is  the  endow- 
ment which  confers  the  right  of  visitation  ; ' '  and  adds,  ' '  Let 
us  now  examine  the  constitution  of  Dartmouth  Colleo-e.  Its 
original  funds  arose  altoo-ether  from  the  donations  of  indi- 
viduals,  principally  obtained  through  the  agency  of  Dr. 
Wheelock.  In  no  sense  and  in  no  way  can  it  be  said  that 
they  originated  with  the  king  or  the  public.  Not  a  cent 
of  money  or  an  acre  of  land  was  given  by  the  Province  or 
any  public  body  till  after  the  college  went  into  operation. 
*  *  *  Though  the  State  have  given  lands,  they  were 
not  the  real  founders.  They  were  not  thejirst  benefactors, 
who,  and  who  onl}'",  are  considered  as  founders.     *     *     » 

"  Do  the  defendants'  counsel  contend  that  if  a  town  should 
acquire  by  gift,  or  otherwise,  a  fund  for  the  support  of  a 
school  for  the  inhabitants  of  such  town,  that  the  Legisla- 
ture could  constitutionally  annex  another  town,  giving  to 
all  the  inhabitants  of  the  new  corporation  equal  right  to 
participate  in  this  fund?  *  *  *  But  still  Parliament 
may  pass  many  acts  which  our  Legislature  are  prohibited 
from  passing.     *     *     * 

"  It  is  in  the  exercise  of  the  same  authority  that  Parlia- 
ment can  dissolve  all  corporations.      *     *     * 

"Here  seems  to  be  everything  requisite  to  form  a  compact. 
The  king  is  one  party  ;  the  donors  in  the  first  instance,  and 
then  the  trustees  as  their  acknowledged  substitutes  or  repre- 
sentatives, are  the  other  party.     *     *     *     It  is  too  late  for 


JUDGE    smith's    argument    AT    EXETER.  179 

the  king  to  quarrel  with  the  terms  ;  he  never  did.  *  *  * 
The  truth  is,  the  trustees,  as  a  body  politic,  are  the  legal 
and  equitable  owners  of  the  property  and  of  the  franchises 
conferred  by  the  charter." 

Sullivan,  for  the  State,  urged  that  this  was  "  a  public 
corporation  ; ' '  that  the  test  as  to  whether  it  was  public  or 
private  was  not  whether  it  was  endowed  by  the  bounty  of 
the  government,  or  that  of  an  individual,  but,  as  was  said 
by  Lord  Hardwicke,  "  the  extensiveness  of  the  objects  to  be 
benefitted;"  that  the  charter  answered  the  "questions," 
' '  For  whose  benefit  was  this  corporation  erected  ?  —  for  the 
benefit  of  the  persons  composing  it,  or  for  that  of  the  pub- 
lic ?  "  by  setting  forth  that  it  was  '■'•for  the  benefit  of  said 
province ;  ' '  that  ' '  it  appears  from  the  charter  that  the  cor- 
poration of  Dartmouth  College  was  established  for  the  ex- 
press, the  avowed  purpose  of  promoting  the  welfare  of  a 
whole  province.  It  was  an  instrument  formed  to  attain 
objects  in  which  no  individual  had  a  particular  interest,  but 
in  which  the  community  had  a  deep  one.  It  was  vested  with 
power  to  hold  property  in  trust  for  the  public,  but  it  could 
hold  none  for  the  use  of  the  corporators.  It  was  clothed 
with  various  powers,  capacities  and  franchises,  all  of  which 
were  to  be  exercised  for  the  benefit  of  the  public,  but  not 
one  of  them  for  the  advantage  of  its  own  members,  or  of 
any  individuals  whatever.  In  short,  it  was  created,  it 
existed,  only  for  public  purposes.  *  *  *  jf  ^j^jg  qqi-.. 
poration  was  a  private  one,  I  shall  contend  that  the  Legis- 
lature had  a  right  to  alter  its  charter,  so  far  as  the  public 
good  required.     *     *     * 

"  Suppose  the  lands  of  a  private  corporation  are  wanted 
for  a  fortification  or  an  arsenal ;  may  they  not  be  taken  ? 
Suppose  they  are  wanted  for  a  highway,  or  for  any  impor- 
tant public  purpose  ;  may  they  not  be  taken  ?  *  *  » 
Does  the  law  guard  the  property  of  corporations  with  more 
vigilance  than  that  of  individuals?  Are  the  rights  of  the 
former  more  sacred  than  those  of  the  latter  ?     *     *     * 


180  DARTMOUTH    COLLEGE    CAUSES. 

"  It  is  alleged  that  these  acts  violate  the  Constitution  of  the 
United  States.  When  a  charter  of  incorporation  is  granted, 
there  is  always,  it  is  said,  an  implied  contract,  on  the  part 
of  the  government,  that  the  charter  shall  not  be  altered 
without  the  consent  of  the  corporation.      *     *     * 

"  If  a  charter  of  incorporation  be  a  contract,  it  certainly 
is  not  such  a  contract  as  comes  within  the  spirit  and  mean- 
ing of  that  article  in  the  constitution.  *  *  *  The  Supreme 
Court  in  Massachusetts  have  said  this  was  the  design  of  the 
provision :  '  The  article  respecting  the  obligation  of  con- 
tracts, as  we  all  know,  was  provided  against  paper  money 
installment  laws,'  etc.  *  *  *  It  is  remarked  by  Judge 
Johnson,  in  the  case  of  Fletcher  v.  Peck,  that  the  State 
legislatures  pass  laws  impairing  the  obligation  of  contracts, 
yet  that  these  laws  appear  to  be  within  the  most  correct 
limits  of  legislative  powers,  and  certainly  could  not  have 
been  intended  to  be  affected  by  this  constitutional  pro- 
vision.     *     *     * 

"It  has  been  asserted  that  Dr.  Wheelock  was  the  founder, 
but  the  assertion  is  supported  by  no  evidence.  *  *  * 
The  charter,  probably  in  consequence  of  these  exertions, 
calls  him  the  founder.  But  this  does  not  make  him  so. 
The  first  gift  of  the  revenues  is  the  foundation,  and  he 
who  gives  them  is  in  law  the  founder.  Many  individuals 
made  donations  ;  but  Avho  made  the  first  ?  It  does  not 
appear.  I  am  instructed  to  say  that  Dr.  Wheelock  made 
very  liberal  donations  to  Moor's  Charity-School,  an  institu- 
tion in  the  neighliorhood  of  the  college,  though  entirely 
distinct  from  it,  but  that  he  made  none  to  the  college  itself. 
*  *  *  In  no  part  of  the  charter  is  it  mentioned  that  he 
made  any  donation  to  the  college.  If  he  did,  there  is  no 
evidence  of  the  fact.  It  does  not  appear,  then,  that  he  was 
the  founder,  or  that  he  had  power  to  transfer  the  right  of 
visitation  to  the  trustees.      *     *     * 

*'  If  Dr.  Wheelock  was  the  founder  and  visitor  of  the 
college,  he   did  not  transfer  to  the  trustees  the  right   of 


Sullivan's  argument  at  exetek.  181 

visitation.  There  are  no  words  in  the  charter  making  them 
visitors.     *     *     * 

' '  The  trustees  allege  that  the  General  Court  attempted 
to  compel  them  to  act  under  an  amended  charter,  and  that 
they  had  no  power  to  do  it.  Many  cases  have  been  cited 
on  this  point,  but  they  only  show  that  the  king  cannot 
compel  corporations  to  accept  or  act  under  amended 
charters,  not  that  Parliament  cannot  compel  them.  The 
authority  of  Parliament,  as  every  one  knows,  is  much  more 
extensive  than  that  of  the  king.  The  king  cannot  grant  to 
a  cori^oration  exclusive  privileges ;  Parliament  may.  The 
king  cannot  dissolve  a  corporation ;  Parliament  possesses 
the  power.  Corporations  in  this  State  have  frequently  been 
compelled  to  act  under  amended  charters.      *     *     * 

' '  Suppose  the  trustees  had  been  guilty  of  great  abuses  of 
their  trust,  an  information  had  been  filed,  and  their  charter 
had  been  declared  forfeited.  What  would  have  been  the 
consequences?  Would  the  trustees  have  lost  any  thing? 
Not  a  cent.  The  public,  and  not  the  trustees,  would  have 
been  the  sufferers.     *     *     * 

"In  the  first  place,  we  are  told  that  the  corporation  is 
placed  beyond  the  control  of  the  Legislature.  They  have  no 
authority  to  amend  its  charter ;  to  touch  its  property ;  to 
take  from  it  a  single  right  or  pri\dlege  ;  or  to  limit  the 
exercise  of  any  one  of  its  powers.  In  the  next  place,  we 
are  told  that  the  trustees  are  visitors  of  the  colleo;e  and  of 
the  application  of  its  funds.  This  places  them  beyond  the 
control  of  every  court  of  law,  let  them  do  what  they  will  with 
the  property  given  to  the  institution.  '  The  sentence  of  a 
visitor,  on  subjects  within  his  jurisdiction,  is  final  and  con- 
clusive, and  the  king's  courts  cannot  in  any  form  of  proceed- 
ing review  the  sentence.'      (2  Kyd  on  Corp.)     *     *     * 

"It  is  within  the  jurisdiction  of  a  visitor,  it  is  his  duty, 
to  see  that  the  funds  given  to  the  institution  of  which  he  is 
a  visitor  are  properly  applied ;  and  when  he  decides,  his 
sentence  is  conclusive  on  all  courts.     Suppose  the  trustees 


182  DARTMOUTH  COLLEGE  CAUSES. 

should  appropriate  the  funds  of  the  college  to  their  own 
use.  If  they  are  visitors  as  to  the  application  of  the  funds, 
as  is  contended,  no  court  of  law  can  make  them  accountable. 
A  visitor  is  himself  subject  to  no  visitation,  to  no  control. 
Where  is  the  man,  though  possessed  of  the  most  charitable 
and  benevolent  feelings,  that  would  give  to  a  corporation 
raised  so  far  above  all  responsibility?  Such  a  corporation 
is  a  monster,  that  would  devour  all  charities  !  The  very 
sight  of  such  a  monster,  placed  beyond  all  legislative,  all 
judicial  control,  like  the  terrific  head  of  Medusa,  would 
convert  even  Charit}^  herself  into  stone  ?  *  *  *  That  a 
corporation,  created  for  the  sole  purpose  of  promoting  the 
public  interest,  may  be  altered  in  such  a  manner  as  the 
public  interest  requires,  is  a  principle  as  obvious  to  common 
sense  as  any  that  can  be  imagined," 

Bartlett  states  the  position  of  Mason  and  Smith  to  be,  — 

"1.  That  the  legislative  acts  in  question  are  contrary  to 
the  principles  of  natural  justice, 

"2.  That  corporations  of  this  nature  are  independent  of 
legislative  control. 

"3.  That  the  provisions  of  these  acts  violate  the  consti- 
tutions of  New  Hampshire  and  the  United  States." 

He  then  argues  that  the  first  point  is  too  indefinite  ;  that 
no  court  is  Avarranted  in  setting  aside  any  law  because  the 
judges  may  think  it  is  contrary  to  natural  justice  ;  that  the 
provision  abolishing  the  oath  of  allegiance  to  the  king,  or 
the  section  guaranteeing  freedom  of  religious  opinion,  is  not 
in  violation  of  natural  justice  ;  that  all  the  authorities  show 
that  changing  the  name  changes  none  of  the  rights,  duties, 
powers,  or  privileges  of  the  corporation;  that  the  State  had 
not  confiscated  corporate  property,  but  renovated  the  cor- 
poration, and  added  new  members,  according  to  the  decision 
in  King  v.  Pasmore,  3  Term  Rep.  244  ;  that  Ashhurst,  J.,  was 
right  when  he  said  in  that  case,  "  As  to  there  being  here  a 
dissent  of  a  majority  of  the  old  members,  I  lay  no  stress 
upon  it."      *     *     * 


BAKTLKTT's    AEGUMENT    at    EXETER.  183 

"  Here  the  members  of  the  old  corporation  have  no  injury 
or  injustice  to  complain  of,  for  they  are  all  included  in  the 
new  charter  of  incorporation,  and  if  any  of  them  do  not 
become  members  of  the  new  corporation,  but  refuse  to 
accept,  it  is  their  own  fault ;  "  that  Philips  v.  Bury,  4  Mod. 
Kep.  117,  showed  that  "the  universities  in  England,  and 
institutions  of  a  similar  nature  in  this  country,"  were  pub- 
lic corporations ;  that  the  English  doctrine  that  corpo- 
rations could  be  dissolved  by  act  of  Parliament  ' '  had  long 
been  exercised,  in  practice,"  in  Great  Britain  and  the 
colonies  ;  —  citing  the  Land  Bank  and  South  Sea  schemes  ; 
the  statute  declaring  all  corporations  and  licenses  granted 
by  Henry  VI.  void  ;  the  abolition  of  monopolies  by  Parlia- 
ment ;  the  frequent  changes  in  the  admission-fee  of  trading 
companies,  in  the  number  of  their  members,  and  their  quali- 
fications ;  the  radical  changes  in  the  act  of  5  Geo.  IH.  in 
the  African  corporation,  created  by  the  act  of  23  Geo.  H.  ; 
the  case  of  Manchester  College,  in  which  Parliament,  by  act 
of  2  Geo.  II.,  annulled  the  powers  of  a  special  visitor  and 
vested  them  in  the  crown ;  the  abrogation  of  the  oaths  of 
allegiance  and  supremacy  by  the  act  of  1  Wni.  &  Mary, 
which  provided  for  vacating  the  office  of  head  patron  in  St. 
John's  College  if  the  incumbents  refused  to  take  the  new 
oath. 

He  also  referred  to  the  act  passed  by  Connecticut  in  1723, 
enlarging  the  number  of  trustees  of  Yale  College,  fixing  a 
quorum,  creating  new  officers,  and  establishing  other  regu- 
lations without  petition  or  consent  of  the  corporation  ;  to 
the  act  of  Massachusetts  in  1673,  adding  to  the  members  of 
the  corporation  of  Harvard  College,  "against  the  will  of 
the  corporation ;"  and  to  the  repeal  of  the  provision  in  the 
charter  of  Trinity  Church,  in  regard  to  "  induction,"  by  the 
State  of  New  York,  by  the  act  of  1784. 

He  concluded  this  branch  of  his  argument  with  ofi'ering 
**  to  abandon  the  defence  when  one  unequivocal  authority 


184  DARTMOUTH  COLLEGE  CAUSES. 

shall  be  produced  by  the  plaintiifs  to  show  that  the  exercise 
of  such  power  was  ever  judged  illegal.     *     *     * 

"But  the  plaintills  have  insisted  that  '  it  is  a  private 
eleemosynary  corporation  ; '  and  that  statement  is  attempted 
to  be  supported,  in  the  first  place,  by  confounding  this  insti- 
tution with  'Moor's  Indian  Charity-Sehool,'  which  Dr.  E. 
Wlieelock  claimed  as  his,  and  over  which  no  other  jurisdic- 
tion has  been  exercised  but  at  his  request.  Now,  no  fact 
on  record  is  more  clearly  stated  than  that  this  institution 
and  Moor's  Indian  Charity-School  were  entirely  distinct  and 
independent  of  each  other  in  their  origin  and  establishment ; 
were  ever  governed  separately,  without  the  least  connection, 
until  the  school  solicited  the  interference  of  the  legislature 
and  college.  Their  funds  and  property  are  now  distinct  and 
separate.  For  proof  of  this,  we  need  no  more  time  than  is 
necessary  to  read  the  record  of  a  vote  passed  by  the  plain- 
tiffs, May  7,  1789,  as  follows :  '  Representations  having 
been  made  to  this  board,  that  apprehensions  have  arisen  in 
the  minds  of  some  persons,  that  moneys  collected  in  Great 
Britain  by  the  Rev.  Messrs.  "Whitaker  and  Occom,  for  the 
use  of  Moor's  Charity-School,  under  the  direction  of  Rev. 
Dr.  Wheelock,  have  been  applied  by  this  board  to  the 
use  and  benefit  of  Dartmouth  College  ;  —  Resolved,  that  this 
board  have  never  had  any  control  or  direction  of  said 
moneys,  nor  have  they  to  their  knowledge,  at  any  time 
received  or  applied  any  sum  or  sums  thereof  to  the  use  and 
benefit  of  said  college,'  etc.  A  letter  of  instruction  to  Dr. 
Wheelock  from  the  honorable  board  of  trust  of  that  school 
in  England,  April  25,  1771,  states  that  '  the  corporation  of 
Dartmouth  College  in  its  nature  and  designs  differs  from 
the  establishment  of  their  school,'  and  forbids  Dr.  Wheelock 
from  subjecting  the  school  or  its  funds  to  the  disposition  of 
that  institution." 

He  then  replied  at  length  to  the  argument  that  the  acts  in 
question  were  prohibited  by  the  State  Constitution,  urging 


ARGUMENT    OF    BARTLETT    AND    WEBSTER.  185 

that  the  provisions  referred  to  were  but  a  reenactment  of  the 
great  charter,  which  had  not  been  invaded  in  the  cases  cited. 

"  But  at  last  it  is  insisted  that  these  are  '  laws  hnpairing 
the  obligation  of  contracts.^  Finding  that  the  stnnv^s  they 
have  seized  upon  in  the  struggle  cannot  support  their  sinking 
claim,  witli  the  eagerness  of  desperation,  they  grasp  at  this 
shadow  of  a  pretence.  *  *  *  If  any  interpretation  of  that 
clause  can  be  made  applicable  to  the  present  case,  all  the 
benefits  surely  should  be  awarded  to  the  plaintiffs'  counsel 
as  the  first  discoverers.  Most  unquestionably  by  the  sur- 
vivors of  the  Convention  who  framed  that  instrument,  such 
an  idea  would  now  be  deemed  original.     *     *     * 

"In  a  case  much  stronger  than  the  present,  it  was  consid- 
ered by  the  counsel  as  well  as  the  court  (Brown  v.  Bank,  8 
Mass.  448)  that  'the  notion  of  a  contract  between  the  gov- 
ernment and  corporation  was  too  fanciful  to  need  any  obser- 
vation. *  *  *  Tliat  scholastic  subtlety  and  ingenuity 
by  which  the  plaintiffs  would  raise  a  contract  in  this  trans- 
action, would  prove  quite  too  much  for  their  purpose,  for  in 
some  sense  even  government  itself  is  a  contract,  and  by  the 
same  reasoning  every  act  and  every  law  must  be  considered  in 
the  nature  of  a  contract^  until  the  Legislature  would  find 
themselves  in  such  a  labyrinth  of  contracts,  with  the  United 
States  Constitution  over  their  heads,  that  not  a  subject  would 
be  left  Avithin  their  jurisdiction.      *     *     * 

"  The  plaintiffs,  however,  say,  an  express  contract  exists 
here,  that  they,  and  they  alone,  shall  be  trustees  of  this 
institution.  *  *  *  gy  a  reference  to  tlie  charter  it  will 
appear  that  the  corporation  was  created  independent  of  the 
trustees  ;  and  that  tliey  were  afterwards  appointed  in  a  dif- 
ferent clause  of  the  charter.      *     *     * 

"  The  provision  in  the  charter  with  regard  to  the  number, 
was  intended  as  a  regulation  to  limit  the  board  in  their 
appointments,  and  not  with  a  view  to  control  the  Legisla- 
ture. *  *  *  Who  are  the  parties  to  all  these  con- 
tracts ?     Can  there  be  any  other,  either  express  or  implied. 


186  DARTMOUTH    COLLEGE    CAUSES. 

than  the  founder,  the  power  creating  the  corporation  and 
those  for  luhose  benefit  it  is  established  ?  As  a  pubh'c  insti- 
tution, we  believe  the  croivn  has  been  shown  to  be  the 
founder.  Or  even  as  an  eleemosynary  corporation,  that  the 
rights  of  foundation  rest  in  the  crown,  from  the  public 
endowments.  The  crown  also  was  the  power  that  created  it. 
The  State,  since  the  Revolution,  succeeds  to  the  rights  of  the " 
crown.      (Terrett  v.  Taylor,  9  Cranch,  50.)  " 

The  counsel  all  agreed  that  if  proceedings  could  be  suc- 
cessfully instituted  in  the  name  of  the  State  for  a  forfeiture, 
the  College  funds  would  go  back  to  the  donors  or  their 
heirs ;  and  that  no  court  of  chancery  existed  to  correct 
abuses,  unless  the  Legislature  had  such  powers,  which  the 
counsel  for  the  plaintiffs  denied. 

More  than  three  hundred  references  were  made  by  the 
various  counsel,  to  decided  cases,  statutes,  and  standard 
works  of  authority. 

Webster  was  not  always  equally  great  and  impressive. 
Sometimes  he  was  comparatively  dry,  heavy,  and  uninterest- 
ing. A  great  subject  and  a  great  occasion  would  always 
bring  out  his  cold,  unimpassioned  logic.  But  when  hard 
pressed,  or  weighted  down  with  responsibilities,  as  he  was  in 
this  case,  he  apparently  became  charged  with  volcanic  fire. 
His  argument  at  Exeter  was  never  reported  ;  but  tradition, 
public  prints,  and  old  letters  point  to  but  one  conclusion.  If 
not  the  greatest,  it  was  one  of  the  most  brilliant  efibrts  of 
his  life,  and  produced  a  most  extraordinary  effect.  He 
closed  with  the  "Caesar  in  the  senate-house"  peroration, 
which  was  so  much  admired  by  Professor  Goodrich  and 
others  when  he  recited  it  at  Washington  ( 1  Life  of  Web- 
ster, 170),  and  the  court  adjourned  in  tears. 


CHAPTER     yi.  —  CoNTmuED. 

The  counsel  for  the  State  were  overmatched ;  but  they 
were  able  men,  and,  in  comparison  with  what  in  other  hands 
afterwards  befell  their  cause  in  Washington,  handled  it  with 
consummate  skill.  The  counsel  for  the  trustees  differed  in 
their  views,  as  will  hereafter  appear,  upon  a  single  point, 
which  was  understood  by  the  opposing  counsel  and  the 
court  to  have  been  waived  or  abandoned.  Upon  the  other 
points  they  were  a  unit  in  argument,  whatever  their  private 
convictions  might  have  been.  Their  strategic  plan  was  to 
carry  the  State  court  with  them,  if  possible  ;  and  failing  in 
that,  to  break  the  force  of  an  adverse  decision  by  dividing 
the  court.  To  accomplish  this  they  put  forth  all  their 
powers,  but  failed. 

The  judges  continued  the  cause,  for  advisement,  till  the 
November  term ,  at  Plymouth  ,1817.  On  November  6,1817, 
the  chief  justice  read  the  unanimous  opinion  of  the  court, 
adverse  to  the  trustees,  which  occupies  nearly  thirty  pages 
in  Farrar's  report.  Its  pith  is  stated  in  the  head-notes  in 
1  N.  H.  Ill,  which  were  undoubtedly  prepared  by  the  chief 
justice :  — 

"1.  The  corporation  of  Dartmouth  College  is  a  public  corpora- 
tion. 

"2.  An  act  of  the  Legislature,  adding  new  members  to  such  a 
corporation,  without  the  consent  of  the  old  corporation,  is  not  re- 
pugnant to  the  Constitution  of  the  State. 

"  3.  The  charter  of  the  king,  creating  the  corporation  of  Dart- 
mouth College,  is  not  a  contract  within  the  meaning  of  that  clause 
in  the  Constitution  of  the  United  States  which  prohibits  States 
from  passing  laws  impairing  the  obligation  of  contracts." 

(187) 


188  DARTMOUTH  COLLEGE  CAUSES. 

The  court  say:  "This  cause  has  been  argued  on  both 
sides  with  uncommon  learning  and  ability,  and  we  have 
witnessed  with  pleasure  and  with  pride  a  display  of  talents 
and  eloquence,  upon  this  occasion,  in  the  highest  degree  hon- 
orable to  the  profession  of  the  law  in  this  State.  If  the 
counsel  of  the  plaintiffs  have  failed  to  convince  us  that  the 
action  can  be  maintained,  it  has  not  been  owing  to  any  want 
of  diligence  in  research,  or  ingenuity  in  reasoning,  but  to  a 
want  of  solid  and  substantial  grounds  on  which  to  rest  their 
arouments." 

The  court  define  at  length  the  characteristics  of  private 
and  public  corporations.  They  do  not  assume,  as  has  so 
often  erroneously  been  said,  but  decide,  that  this  was  a  pub- 
lic corporation,  and  give  the  reasons  therefor.  They  say  : 
'  Public  corporations  are  those  which  are  created  for  public 
purposes,  and  whose  property  is  devoted  to  the  objects 
for  w^hich  they  are  created.  The  corporators  have  no 
private  beneficial  interest,  either  in  their  franchises  or 
their  proj)erty.  The  only  private  right  which  individuals 
can  have  in  them,  is  the  right  of  being  and  of  acting  as 
members.     *     *     * 

"  A  corporation,  all  of  w^hose  franchises  are  exercised  for 
public  purposes,  is  a  public  corporation.  *  *  *  Be- 
cause, in  both  cases,  all  the  property  and  franchises  of  the 
corporations  would  in  fact  be  public  property.  A  gift  to  a 
corporation  created  for  public  purposes  is  in  reality  a  gift 
to  the  public.  *  *  *  Whether  an  incorporated  college, 
founded  and  endowed  by  an  individual  who  had  reserved 
to  himself  a  control  over  its  affairs  as  a  private  visitor, 
must  be  viewed  as  a  public  or  as  a  private  corporation,  it 
is  not  necessary  now  to  decide,  because  it  does  not  appear 
that  Dartmouth  College  was  subject  to  any  private  visita- 
tion whatever." 

After  quoting  at  length  from  the  charter,  the  court  say : 
"  Such  are  the  objects  and  such  the  nature  of  this  corpora- 


DECISION    OF    THE    STATE    COURT.  189 

tion,  appearing  upon  the  face  of  the  charter.  It  was  created 
for  the  purpose  of  holding  and  managing  property  for  the 
use  of  the  college,  and  the  college  was  founded  for  the  j^ur- 
pose  of  '  spreading  the  knowledge  of  the  Great  Redeemer' 
among  the  savages,  and  of  furnishing  '  the  best  means  of 
education  '  to  the  province  of  N'ew  Hampshire.  These  great 
purposes  are  surely,  if  any  thing  can  be,  matters  of  public 
concern.  Who  has  any  private  interest  either  in  the  objects 
or  i)roperty  of  this  institution  !  The  trustees  themselves 
have  no  greater  interest  in  the  spreading  of  Christian  knowl- 
edge among  the  Indians,  and  in  providing  the  best  means  of 
education,  than  any  other  individuals  in  the  community. 
Nor  have  they  any  private  interest  in  the  property  of  this 
institution  ;  nothing  that  can  be  sold  or  transferred,  that  can 
descend  to  their  heirs,  or  can  be  assets  in  the  hands  of  their 
administrators.  If  all  the  property  of  the  institution  were 
destroyed,  the  loss  would  be  exclusively  public,  and  no  pri- 
vate loss  to  them.  So  entirely  free  are  they  from  any  private 
interest,  in  this  respect,  that  they  are  competent  witnesses  in 
causes  where  the  corporation  is  a  party,  and  the  property  of 
the  corporation  in  contest.  *  *  *  They  [the  trustees] 
have  no  private  riglit  in  the  institution,  except  the  right  of 
office,  —  right  of  being  trustees  and  of  acting  as  such.  It 
therefore  seems  to  us  that  if  such  a  corporation  is  not  to  be 
considered  as  a  public  corporation,  it  would  be  difficult  to 
find  one  that  could  be  so  considered.  *  *  *  ^\  private 
rights  in  this  institution  must  belonfi:  either  to  those  who 
founded  or  whose  bounty  has  endowed  it ;  to  the  officers 
and  students  of  the  college,  or  to  the  trustees.  As  to  those 
who  founded  or  who  have  endowed  it,  no  person  of  this 
description  who  claims  any  private  right  has  been  pointed 
out  or  is  known  to  us.  It  is  not  understood  that  any  per- 
son claims  to  be  visitor  to  this  college.  An  absolute  dona- 
tion of  land  or  money  to  an  institution  of  this  kind  creates 
no  private  right  in  it.       Besides,  if  the  private  rights  of 


190  DARTMOUTH    COLLEGE    CAUSES. 

founders  or  donors  have  been  infringed  by  these  acts,  it  is 
their  business  to  vindicate  their  own  rights.  It  is  no  concern 
of  these  plaintiffs.  When  founders  and  donors  complain, 
it  will  be  our  duty  to  hear  and  decide  ;  but  we  cannot  adju- 
dicate upon  their  rights  till  they  come  judicially  before 
us.     *     *     * 

"  But  it  is  said  that  the  charter  of  1769  is  a  contract,  the 
validity  of  which  is  impaired  by  these  acts  in  violation  of 
that  clause  in  the  tenth  section  of  the  first  article  of  the 
Constitution  of  the  United  States,  which  declares  that  '  no 
State  shall  pass  any  law  impairing  the  obligation  of  con- 
tracts.' It  has  probably  never  yet  been  decided  that  a 
charter  of  this  kind  is  a  contract  within  the  meaning  of  the 
Constitution  of  the  United  States.  None  of  the  cases  cited 
were  like  the  present.  *  *  *  This  clause  in  the 
Constitution  of  the  United  States  was  obviously  intended  to 
protect  private  rights  of  property,  and  embraces  all  con- 
tracts relating  to  private  property,  whether  executed  or 
executory,  and  whether  between  individuals,  between  States, 
or  between  States  and  individuals.  The  word  *  contracts  ' 
must,  however,  be  taken  in  its  common  and  ordinary  accep- 
tation as  an  actual  agreement  between  parties,  by  which 
something  is  granted  or  stipulated  immediately  for  the 
benefit  of  the  actual  parties.  But  this  clause  was  not 
intended  to  limit  the  power  of  the  States  in  relation  to  their 
own  public  officers  and  servants,  or  to  their  own  civil  insti- 
tutions, and  must  not  be  construed  to  embrace  contracts, 
which  are,  in  their  nature,  mere  matters  of  civil  institution  ; 
nor  grants  of  power  and  authorit}^  by  a  State  to  individuals, 
to  be  exercised  for  purposes  merely  public.  Thus,  marriage 
is  a  contract ;  but  being  a  mere  matter  of  civil  institution, 
is  not  within  the  meaning  of  this  clause.  A  law,  therefore, 
authorizing  divorces,  though  it  impairs  the  validity  of  mar- 
riage contracts,  is  not  a  violation  of  the  Constitution  of  the 
United  States.     *     *     * 


DECISIOX    OF    THE    STATE    COURT.  191 

'*  The  distinction  we  have  here  endeavored  to  lay  down, 
between  the  contracts  which  are  and  which  are  not  intended 
by  that  instrument,  seems  to  us  to  be  clear  and  obvious. 
If  the  charter  of  a  public  institution,  like  that  of  Dartmouth 
College,  is  to  be  construed  as  a  contract  within  the  intent 
of  the  Constitution  of  the  United  States,  it  will,  in  our 
opinion,  be  difficult  to  say  what  powers,  in  relation  to  their 
public  institutions,  if  any,  are  left  to  the  States.  It  is  a 
construction,  in  our  vicAv,  repugnant  to  the  very  principles 
of  all  government,  because  it  places  all  the  public  institu- 
tions of  all  the  States  beyond  legislative  control.  For  it  is 
clear  that  Congress  possesses  no  powers  on  the  subject. 
We  are,  therefore,  clearly  of  opinion  that  the  charter  of 
Dartmouth  College  is  not  a  contract  within  the  meaning  of 
this  clause  in  the  Constitution  of  the  United  States." 
.  "But,  admitting  that  charter  to  have  been  such  a  con- 
tract, what  was  the  contract?  Can  it  be  construed  to  be  a 
contract  on  the  part  of  the  king  with  the  corporators  whom 
he  appointed,  and  their  successors,  that  they  should  forever 
have  the  control  of  the  affairs  of  this  institution,  and  be  for- 
ever free  from  all  legislative  interference,  and  that  their  num- 
ber should  not  be  augmented  or  diminished,  however  strongly 
the  public  interest  might  require  it?  Such  a  contract  in 
relation  to  a  public  institution  would,  as  we  conceive,  be 
absurd,  and  repugnant  to  the  principles  of  all  government. 
The  king  had  no  power  to  make  such  a  contract,  and  thus 
bind  the  sovereign  authority  on  a  subject  of  mere  public 
concern.  Nor  does  our  Legislature  possess  the  power  to 
make  such  a  contract.     *     *     * 

"  A  distinction  is  to  be  taken  between  particular  grants, 
by  the  Legislature,  of  property  or  privileges  to  individ- 
uals for  their  own  benefit,  and  grants  of  power  and  author- 
ity to  be  exercised  for  public  purposes.  The  former  is,  in 
its  nature,  special  legislation  in  relation  to  private  rights  ; 
the  latter  is  general  legislation  in  relation  to  the  common 


192  DARTMOUTH  COLLEGK  CAUSES. 

interests  of  all.  Chief  Justice  Marshall,  in  the  case  of 
Fletcher  v.  Peck,  6  Cranch,  135,  adverts  to  this  distinction 
where  he  says  :  *  The  correctness  of  this  principle,  that  one 
legislature  cannot  abridge  the  powers  of  a  succeeding  legis- 
lature so  far  as  respects  general  legislation,  can  never  be 
controverted.  But  if  an  act  be  done  under  a  law,  a  suc- 
ceeding legislature  cannot  undo  it.  The  past  cannot  be 
recalled  by  the  most  absolute  power.  Conveyances  have 
been  made  ;  those  conveyances  have  vested  legal  estates ; 
and  if  those  estates  may  be  seized  by  the  sovereign  author- 
ity, still,  that  they  originally  vested  is  a  fact,  and  cannot 
cease  to  be  a  fact.'  We  are,  therefore,  of  opinion  that  if 
this  charter  can  be  construed  to  be  a  contract  Avithin  the 
meaning  of  the  Constitution  of  the  United  States,  yet 
still  it  contains  no  contract,  binding  on  the  Legislature, 
that  the  number  of  trustees  shall  not  be  augmented,  and 
that  the  validity  of  the  contract  is  not  impaired  by  these 
acts." 

This  opinion,  precisely  the  same  as  in  the  State  report, 
was  published  in  pamphlet  form  in  January,  1818,  and 
copies  of  it  were  scattered  broadcast,  in  legal,  political, 
and  religious  circles,  —  Webster  declining  to  furnish  any 
minutes  of  his  argument  therefor  to  Isaac  Hill,  the  pub- 
lisher. 

Webster  said  of  this  opinion  (letter  to  Story,  September 
9,  1818),  "The  truth  is,  the  New  Hampshire  opinion  is 
able,  ingenious,  and  plausible." 

In  July,  1818,  Chancellor  Kent  visited  Hanover.  He 
called  upon  the  president  and  professors  of  the  University, 
but  not  upon  those  of  the  College.  He  purchased  one  of 
the  pamphlet  copies  of  the  opinion  referred  to,  examined 
it,  commended  it  in  the  highest  terms,  and  concurred  in  the 
conclusion. 

Chief  Justice  Kichardson  was  assailed  with  great  virulence 
for  the  position  taken  by  him  in  his  opinion,  that  the  pur- 


OPINION    OF    KENT    AND    WEBSTER.  193 

pose  of  the  great  barons  of  England,  when  they  wrested 
Magna  CJiarta  from  King  John,  was  not  to  tie  their  own 
or  the  hands  of  Parliament,  which  they  controlled,  by  the 
per  legein  terrae  clause,  but  those  of  the  crown.  It  is 
worthy  of  note  that  this  opinion  was  recently  reaffirmed 
by  the  Supreme  Court,  in  Davidson  v.  New  Orleans,  96 
U.  S.  102. 

But  in  general  it  has  received  from  others  "  scanty  jus- 
tice." If  the  State  Court  erred,  it  did  so  aside  from  the 
point  referred  to,  and  a  few  authorities  cited  upon  an- 
other, with  all  the  light  that  could  be  thrown  upon  it. 
The  private  correspondence  of  the  counsel  shows,  with 
the  exceptions  named,  that  nothing  new,  as  a  legal  argu- 
ment, was  advanced  at  Washington.  A  comparison  of  the 
arguments  before  the  two  courts  brings  us  to  the  same 
conclusion. 

Thompson,  in  his  letter  of  November  3,  1817,  to  Judge 
Smith,  says  :  "At  Mr.  Marsh's  request,  I  write  this  line  to 
say  that  Ichabod  Bartlett  was  heard  to  say  they  on  their 
part  would  not  agree  to  a  verdict  in  such  form  as  that  the 
cause  might  be  removed  to  the  S.  Court  of  the  United 
States.  This  is  a  report.  Mr.  Marsh  says  you  must  be 
on  your  guard  against  chica,nery.  Woodbury  observed  last 
evening,  not  in  my  hearing,  that  it  was  doubtful  whether  a 
decision  would  be  had  at  Plymouth  this  term." 

This  letter  was  received  by  Judge  Smith  at  Plymouth 
court,  November  6,  1817,  the  same  day  on  which  the  opin- 
ion was  read  by  the  chief  justice. 

Trustees  v.  Woodward  was,  in  form,  taken  to  the  Supreme 
Court  from  the  November  term,  1817,  of  the  Superior 
Court  of  New  Hampshire  ;  but  in  fact,  not  until  late  in 
December,  1817,  in  consequence  of  the  difficulty  the  counsel 
for  the  respective  parties  found  in  agreeing  upon  a  special 
verdict.  Judge  Smith  drew  one,  Mr.  Bartlett  another. 
No  advantage  could  be  gained  for  the  plaintiffs  over  the 
acute,  quick-sighted,  and  tenacious  Bartlett. 


194  DARTMOUTH  COLLEGE  CAUSES. 

Underneath  the  agreement  of  May  25,  ah-eady  quoted, 
the   folio  whig  Avas  written   at  the  November  term,   1817: 

We  agree  that  the  special  verdict  shall  be  drawn  up  as  soon 
as  may  be,  and  signed  by  the  counsel  on  both  sides,  under  the 
direction  of  the  Cliief  Justice. 

Jeremiah  Smith, 
George  Sullivan. 

Mason,  m  his  letter  to  Smith,  of  December  1,  1817,  says  : 
'<  I  have  received  a  letter  from  Mr.  Webster,  in  which  he 
expresses  a  desire  to  have  the  record  and  writ  of  error  in 
the  college  cause  as  soon  as  possible,  to  send  it  on  and  have 
it  entered  early  in  the  docket.  All  that  I  can  do  in  further- 
ance of  this  object  is  to  communicate  his  desire  to  you." 
In  his  letter  of  December  11,  1817,  to  the  same,  Mason 
says  :  "I  received  your  letter,  and  have  seen  Mr.  Bartlett 
and  his  verdict.  He  objects  to  almost  all  yours,  and  we  can 
certainly  agree  to  little  of  his.  He  says,  however,  he  has 
written  to  Mr.  Sullivan  that  he  drew  his  to  match  yours, 
and  that  Mr.  Sullivan  will  not  suppose  that  he  (Mr.  B.) 
thinks  all  his  departures  from  you  material,  and  that  S. 
and  you  will  probably  agree.  I  hope  you  may,  for  I  think 
there  will  [be]  great  trouble  in  any  attempt  to  agree  with 
B.  Judge  Kichardson  has  seen  both.  What  he  thinks  of 
them  I  know  not.  It  is  important  they  be  soon  completed. 
The  bearer  has  both  verdicts,  I  suppose,  to  deliver  to  Mr. 
Sullivan." 

In  his  letter  of  December  12,  1817,  Mason  says  to  Judge 
Smith :  "  Your  man  came  yesterday  for  the  college  verdicts, 
while  I  was  reading  them  for  the  first  time.  I  had  no  time 
to  think  of  them.  After  he  was  gone,  it  occurred  to  me  that 
there  might  be  a  difficulty  in  your  verdict  as  to  the  conver- 
sion. If  I  rightly  recollect,  it  does  not  state  an  actual  con- 
version, but  a  demand  and  refusal.  *  *  *  Perhaps 
it  is  of  no  importance  in  our  case,  as  the  Supreme  Court  can 
reverse  on  one  point  only.    And  for  this  reason,  perhaps,  it 


SPECIAL    VERDICT 'WRIT    OF    ERUOU.  1!*5 

would  be  best  to  have  that  point  only  presented  to  the  court 
in  the  conclusion  of  the  verdict  riitlier  than  the  general  con- 
clusion which  you  contemplated.  I  am  afraid  there  will  be 
a  diiSculty  in  settling  the  verdict.  Do  ever}^  thing  with  Mr. 
Sullivan  if  j'ou  can." 

In  his  letter  of  December  22,  1817,  to  Smith,  Mason  says  : 
"  Judge  Richardson  got  home  last  evening  very  sick,  but 
has  sio-ned  the  citation  and   allowed  writ  of  error  without 

O 

difficulty.  Bartlett  declined  reading  the  special  verdict ; 
said  he  supposed  it  right,  and  should  make  no  objection.  I 
presume  Sullivan  will  sign  the  agreement,  etc. 

"I  think  you  had  best  annex  the  writ  of  error  to  the 
record  &>  indorse  a  return  for  clerk  Webster  for  fear  he  may 
mistake  &also  make  the  return  on  the  citation." 

This  was  done. 

On  December  25,  1817,  Jeremiah  Smith  for  "  plfs.,"  and 
"  Geo.  Sullivan  for  deft,"  signed  the  following  stipulation, 
which  was  sent  up  with  the  special  verdict :  — 

It  is  agreed  by  the  parties  that,  if  the  plaintiffs  shall  recover 
by  the  judgment  of  the  Supreme  Court  of  the  United  States, 
they  shall  accept  the  delivery  of  the  articles  mentioned  in  their 
declaration,  in  full  satisfaction  of  the  damages  recovered.  It  is 
also  agreed  that  no  advantage  shall  be  taken  in  the  Supreme  Court 
of  the  United  States  of  any  want  of  form  in  the  proceedings,  and 
that  the  counsel  then  may  add  any  facts,  documents  or  records  to 
the  special  verdict,  to  be  taken  and  deemed  a  part  thereof,  or  ex- 
pimge  any  fact  therefrom  which,  in  the  opinion  of  the  counsel  or 
Supreme  Court,  may  be  necessary  to  the  obtaining  of  a  decision 
on  the  validity  of  the  acts  of  the  Legislature  of  New  Hampshire, 
recited  in  the  special  verdict;  and  that,  if  the  said  acts  are 
adjudged  to  be  valid,  the  judgment  is  to  be  affirmed ;  otherwise, 
reversed.  It  is  also  agreed  b}'  the  plaintiffs'  counsel,  in  order 
that  the  same  question  ma}^  come  fairly  before  the  court,  that  the 
demand,  refusal  and  conversion  stated  in  the  special  verdict,  shall 
be  considered  as  made  and  done  on  the  day  preceding  the  com- 
mencement of  this  suit. 


196  DARTMOUTH  COLLEGE  CAUSES. 

The  skeleton  special  verdict  drawn  by  Mr.  Bartlett  is  as 
follows  :  — 

The  jurors  upon  their  oaths  say  that  his  majesty,  George  the 
Third,  king  of  Great  Britain,  &c.,  issued  his  letters  patent  under 
the  public  seal  of  the  province  now  State  of  New  Hampshire,  in 
the  words  following. 

And  the  said  jurors  upon  their  oath  further  say  that  after- 
wards upon  the  eighteenth  day  of  the  same  December,  the  said 
letters  patent  were  duly  enrolled  and  recorded  in  the  secretary's 
office  of  said  province,  now  State  of  New  Hampshire,  and  after- 
wards and  within  one  year  from  the  issuing  of  the  same  letters 
patent,  all  the  persons  named  as  trustees  in  the  same,  accepted 
the  said  letters  patent  and  assented  thereto  and  the  corporation 
therein  and  thereby  created  &  erected  was  duly  organized  and  has, 
until  the  passing  of  the  act  by  the  Legislature  of  New  Hampshire, 
(hereafter  mentioned)  of  the  27th  June,  A.  D.,  1816,  and  ever 
since  (unless  prevented  by  said  act  and  the  doings  under  the  same) 
continued  to  be  a  corporation. 

And  the  said  jurors  upon  their  oath  further  say  that  said  cor- 
poration at  its  creation  and  organization  as  aforesaid  acquired  & 
received  by  donation  &  otherwise,  lands,  goods,  chattels  and 
monies  of  great  value,  and  from  time  to  time  since  have  acquired 
&  received,  in  manner  aforesaid,  lands,  goods,  chattels  and  monies 
of  great  value,  and  on  the  same  27th  day  of  June,  A.  D.,  1816, 
the  said  corporation  created  as  aforesaid,  had  &  held  and  (unless 
prevented  by  said  act  and  the  doings  under  the  same)  ever  since 
have  had  &  held  divers  lands,  tenements,  hereditaments,  goods, 
chattels,  and  monies,  acquired  as  aforesaid,  for  the  uses  and  pur- 
poses in  said  letters  patent  specified  ;  the  yearly  value  of  the  same 
not  exceeding  the  sum  of  $26,666. 

And  the  said  jurors  on  their  oath  further  say  that  the  greater 
part  of  said  monies,  &  lands  received  and  acquired  by  said  cor- 
poration at  the  time  of  its  creation  and  since,  were  received  and 
acquired  by  donation  and  grant  from  the  province  and  now  State 
of  New  Hampshire  —  and  that  part  of  said  lands  holden  by  said 
corporation  as  aforesaid  were  granted  by,  and  are  situate  in  the 
State  of  Vermont. 


bartlett's  special  verdict.  197 

And  the  said  jurors  upon  their  oath  further  say  that  said  cor- 
poration on  the  same  27th  day  of  June,  A.  D.,  1816,  was  possessed 
of  tlie  goods  &  chattels  in  the  declaration  in  this  action  mentioned, 
at  the  place  therein  mentioned,  and  for  the  uses  and  purposes  in 
said  letters  patent  specified,  &  continued  so  possessed  until  and  at 
the  time  of  the  demand  and  refusal  hereinafter  mentioned  ;  unless 
devested  thereof  by  the  said  act  of  27th  June,  A.  D.,  1816,  and  the 
proceedings  under  the  same  as  hereinafter  recited. 

And  the  said  jurors  upon  their  oath  further  say  that  on  third 
day  of  June,  A.  D.,  1815,  John  Wheelock,  a  son  and  heir  of 
Eleazar  Wheelock,  in  said  letters  patent  mentioned,  and  President 
of  said  Dartmouth  College,  duly  appointed,  and  constituted  by  the 
last  will  and  testament  of  said  Eleazar  Wheelock,  and  for  thirty- 
five  j-ears  having  exercised  the  office  of  President,  agreeably  to 
the  provisions  of  the  letters  patent  as  aforesaid,  by  his  memorial 
&  petition  to  the  Legislature  of  New  Hampshire,  represented  that 
the  interests  of  the  institution  of  Dartmouth  College  and  of  liter- 
ature, required  that  the  Legislature  should  pass  an  act  for  the  pur- 
poses and  with  the  provisions  of  the  act  of  June  27,  1816,  herein- 
after recited. 

And  the  said  jurors  upon  their  oaths  further  sa^'  that  on 
27th  day  of  June,  A,  D.,  1816,  the  Legislature  of  the  said  State 
of  New  Hampshire,  made  and  passed  an  act  entitled,  "An  act  to 
amend  the  charter  and  improve  the  corporation  of  Dartmouth 
College,"  in  the  words  following. 

And  the  said  jurors  upon  their  oath  further  say  that  agreeably 
to  the  provisions  of  said  act  of  the  Legislature  of  June  27,  1816, 
the  Board  of  Trustees  as  therein  prescribed,  was  duly  completed 
to  the  number  of  twenty-one,  by  the  appointment  of  seven  per- 
sons, in  addition  to  those  who  at  the  passing  of  said  act  held  the 
office  of  trustees  of  Dartmouth  College  agreeably  to  the  provisions 
of  the  letters  patent  aforesaid. 

And  said  jurors  upon  their  oath  further  say,  that  the  Board 
of  Trustees  assembled  and  were  organized  agreeably  to  the  pro- 
visions of  said  act  at  Hanover  on  the  twenty-sixth  day  of  August, 
A.  D.,  1816. 

And  the  said  jurors  upon  their  oath  further  say  that  Wm.  H. 
Woodward,  the  defendant,  was  the  secretary  &  treasurer  the  cor- 
poration of  Dartmouth  College  at  the  time  of  the  passing  of  said 


198  DARTMOUTH  COLLEGE  CAUSES. 

act  of  the  Legislature  of  the  27.  June,  1816,  at  the  meeting  of 
said  Board  of  Trustees,  organized  agreeably  to  the  provisions  of 
said  act  of  the  Legislature,  of  June  27th,  A.  D.,  1816,  was 
elected  and  duly  appointed  and  qualified  secretary  and  treasurer 
of  said  corporation  so  organized  as  by  said  act  is  provided,  and 
as  secretary  &  treasurer  as  aforesaid,  —  at  the  time  of  the  demand 
hereinafter  mentioned  and  at  the  commencement  of  this  action, 
held  and  still  claims  to  hold,  the  articles  described  in  the  plff' s. 
declaration. 

And  the  said  jurors  upon  their  oath  further  say  that  Timothy 
Farrar,  Asa  McFarland,  Charles  Marsh,  Nathaniel  Niles,  Seth  Pay- 
son,  Elijah  Paine,  John  Smith  and  Thomas  W.  Thompson,  trustees 
of  said  Dartmouth  College,  duly  appointed  under  said  letters 
patent  previous  to  the  passing  by  the  Legislatui'e  of  New  Hamp- 
shire, of  the  said  act  of  the  27th  June,  1816,  assembled  at 
Hanover  aforesaid,  on  the  28th  day  of  August,  A.  D.,  1816,  and 
refusing  to  act  or  meet  with  the  Board  of  Trustees  as  organized 
agreeably  to  said  act  of  said  Legislature,  of  the  27th  June,  A.  D., 
1816,  but  claiming  to  have  authoi'ity  to  act  as  a  quorum  of  the 
Board  of  Trustees  of  Dartmouth  College,  as  organized  by  the 
letters  patent  as  aforesaid,  independent  of  said  act  of  the  Legisla- 
ture of  June  27,  A.  D.,  1816,  passed  a  certain  declaration  or 
resolve  in  words  following. 

And  the  said  jurors  upon  their  oath  further  say  that  the  said 
Eight  trustees  above  named  have  never  accepted,  assented  to,  or 
acted  under  the  said  act  of  the  Legislature,  of  the  27th  June  A. 
D.,  1816,  but  have  continued  to  act,  and  still  claim  to  act  by  vir- 
tue of  said  letters  patent,  independent  of  said  act  of  the  Legisla- 
ture, of  the  27  June,  A.  D.,  1816. 

And  the  said  jurors  upon  their  oath  further  say  that  Said  Eight 
Trustees  above  named,  on  the  28th  day  of  August,  A.  D.,  1816, 
passed  a  vote  purporting  to  remove  the  said  Wm.  H.  Woodward, 
from  the  office  of  secretary  and  treasurer  of  the  corporation  of 
Dartmouth  College,  of  which  said  votes  the  said  Woodward  had 
due  notice,  on  the  day  last  mentioned. 

And  the  said  jurors  upon  their  oath  further  say,  that  the  eight 
trustees  above  named  claiming  to  act  by  virtue  of  said  letters 
patent,  as  aforesaid,  independent  of  said  act  of  the  Legislature, 
of  the  27th  June,  A.  D.,  1816,  on  the  7th  day  of  October,  A.  D. 


JUDGE  smith's  verdict COUNSEL  AT  WASHINGTON       199 

1816,  deraanded  of  the  said  Wm.  H.  Woodward  the  goods  & 
chattels  in  said  declaration  specified,  and  requested  the  said 
Wm.  H.  Woodward  to  deliver  the  same  to  them,  which  the  said 
Woodward  then  &  there  refused  to  do,  &  has  ever  since  refused 
to  do. 

Upon  the  back  is  the  following  indorsement,  in  the  hand- 
writing of  Judge  Smith:    "Spec,  verdict,  reed.  Dec.  12, 

1817,  proposed  by  defts,  not  adopted." 

From  the  indorsements  on  the  paper,  Judge  Smith  ap- 
parentW  objected  to  the  whole,  or  portions  of  paragraphs 
4,  6,  8,  9,  10,  13,  and  14. 

The  special  verdict  now  upon  the  files,  aside  from  the 
copy  of  the  charter  and  the  acts  whose  validity  was  in 
question,  is  in  the  handwriting  of  Judge  Smith,  and  in 
this  form  was  assented  to  by  the  genial,  kindly,  easy,  and 
less  alert  vSulli  van.  It  is  signed,  "Caleb  Keith,  foreman  ; 
Jeremiah  Smith,  for  Plfs.  ;  Geo.  Sullivan,  for  Deft." 

The  copy  of  the  ^\Tit  of  error  on  file  is  also  in  the  hand- 
writing of  Judge  Smith.  The  assignment  of  errors  on  file 
is  also  in  his  handwriting,  but  is  signed,  "  Jeremiah  Smith, 
J.  Mason." 

The  instructions  to  the  clerk  are  in  the  handwriting  of 
Judge  Smith,  and  dated,  "25  Dec,  1817." 

These  papers  were  all  sent  by  Smith,  by  special  messen- 
ger, and  were  filed  with  the  clerk,  December  29,  1817. 

Subscription  papers  were  circulated,  and  Webster  took 
up  a  heavy  collection  among  the  Boston  merchants  to  defray 
the  expenses  of  the  further  litigation.  All  the  counsel  re- 
tained their  connection  Avith  the  cause,  but  none  on  either 
side  were  so  situated  as  to  attend  to  it  at  Washino-ton  ex- 
cept  Webster.  The  trustees,  the  faculty,  and  his  associates 
handed  over  the  cause  to  him,  with  power  to  procure  such 
assistance  as  he  desired.  The  other  side,  for  some  reason 
which  nobody  seems  to  understand,  was  committed  to  John 
Holmes,  of  Maine,  to  w^hom  Jefferson  wrote  his  celebrated 
"fire-bell  in  the  night"  letter;  to  William  Wirt,  and  —  at 
too  late  a  day  —  to  Pinkney. 


CHAPTEK    YII. 

TRUSTEES  V.  WOODWARD  AT  WASHINGTON  — PROGRESS  OF 
THE  OTHER  CAUSES  — PINKNEY  RETAINED  — RE  ARGUMENT 
EXPECTED  — HE  PPvEPARES  FOR  IT  — SUMMARILY  SHUT  OFF 
BY  A  DECISION  — THREE-FOURTHS  OF  WEBSTER'S  ARGU- 
MENT ON  POnSTTS  NOT  BEFORE  THE  COURT  — HIS  REASONS 
FOR  IT  — SOURCE   OF  HIS  ARGUMENT. 

On  March  10,  1818,  four  months  and  four  days  after  the 
decision  adverse  to  the  majority  of  the  old  trustees  in 
the  State  court,  the  first  of  these  causes  (Trustees  v. 
Woodward )  came  on  for  argument  before  the  full  bench  of 
the  Federal  Supreme  Court  at  Washington.  On  March  12, 
1818,  the  arguments  closed,  and  the  judges  went  into  con- 
sultation. Notwithstanding  the  efii"ect  of  the  contrast 
between  the  impotence  in  preparation  and  the  weakness  in 
argument  displayed  on  the  part  of  the  State,  and  the  great 
weight  of  the  elaborated  Mason-Smith-Webster  argument, 
and  the  eloquence  and  adroitness  of  Webster's  great  effort, 
that  conference  revealed  to  the  judges  —  an  anomalous  state 
of  things  in  that  tribunal  upon  a  great  constitutional  ques- 
tion—  that  they  could  agree  upon  nothing,  that  no  judg- 
ment could  be  rendered,  and  that  the  cause  must  be  con- 
tinued to  the  February  term,  1819, —  another  year. 

Two  of  the  seven  judges  were  undecided  ;  Story  had  not 
yet  recanted  his  opinion  adverse  to  the  plaintiffs  ;  and  the 
remaining  four  members  of  the  court  were  equally  divided. 
At  the  opening  of  the  court  on  the  morning  of  March  13, 
1818,  Judge  Marshall  announced,  in  general  terms,  the  re- 
sult of  this  conference,  and  that  in  consequence  the  cause 
must  be  continued.  On  March  14,  1818,  the  court  ad- 
journed without  day. 

( 200 ) 


SUMMARY.  201 

Webster's  pet  cases,  to  which  we  have  before  referred, 
and  to  which  three-fourths  of  his  legal  argument  as  reported 
by  Farrar  was  devoted,  distinctly  raised  the  point  upon 
which  he  greatly  relied  ;  but  they  were  not  only  not  before 
the  Supreme  Court  when  he  made  that  argument,  but  had 
not  reached  the  Circuit  Court.  As  before  stated,  the  United 
States  Circuit  Court  for  New  Hampshire  was  held  at  Ports- 
mouth and  Exeter,  and  commenced  its  sessions  in  May  and 
October  respectively.  These  terms  were  not  only  in  Judge 
Story's  circuit,  but  were  held,  as  it  were,  almost  within  ear- 
shot of  his  home. 

After  the  continuance  of  Trustees  v.  Woodward,  Web- 
ster busied  himself  in  de\'isiug  means  for  the  transfer  of 
these  causes  from  the  May  term  of  the  Circuit  Court, 
1818,  to  Washington,  in  order  to  "  give  "  them  an  "  earlier 
standing"  upon  the  docket  of  the  Supreme  Court.  His 
purpose,  as  stated  by  himself,  was  to  accomplish  this  by 
turning  an  agreement  drawn  up  by  counsel,  like  the  one  in 
Trustees  v.  Woodward,  into  a  special  verdict,  and  then  in- 
ducing Judge  Story,  W\q protege  of  Mason  and  great  admirer 
of  Webster,  and  the  district  judge  to  disagree  pro  forma^ 
without  either  argument  or  decision,  and  to  take  the  cause 
up  at  once  to  the  Supreme  Court,  upon  the  formal  certifi- 
cate that  the  judges  "  were  opposed  in  opinion." 

The  causes  were  transferred  as  Mr.  Webster  desired,  but 
not  until  the  October  term  of  the  Circuit  Court,  1818. 

From  the  first,  the  outside  pressure  in  favor  of  the  Col- 
lege upon  the  State  and  Federal  judges  had  been  very 
marked  and  persistent.  Soon  after  Mr.  Webster's  argu- 
ment, the  requisite  steps  were  taken  to  make  it  still  more 
efiective  upon  the  recalcitrant  judges. 

In  August,  1818,  Webster  furnished  to  Judge  Story 
copies  of  the  arguments  of  the  counsel  for  the  plaintiffs, 
delivered  in  March  preceding,  to  be  distributed  by  him  to  a 
portion  of  the  judges.  These  arguments  were  furnished, 
apparently,  partly  in  the  nature  of  briefs,  and   partly  as 


202  DART3IOUTH    COLLEGE    CAUSES. 

camjDaign  documents  in  reply  to  the  opinion  of  Chief  Jus- 
tice Richardson  in  the  State  court,  which  had  been  "  widely 
circulated." 

Bad  news  travels  fast.  It  was  impossible  for  the  politi- 
cians to  conceal,  under  complimentary  eulogies  of  the  wit 
of  Holmes  and  praises  of  the  brilliant  declamation  of  Wirt, 
the  legal  fiasco  at  Washing-ton  from  those  who  had  the 
honor  of  Wheelock  and  the  interests  of  the  University 
most  at  heart.  This  brought  W^illiam  Pinkney,  of  Mary- 
land, —  the  only  man  at  the  bar  of  the  Supreme  Court  who 
could  meet  Webster  upon  any  thing  like  equal  ground,  — 
into  these  causes,  invested  with  powers  almost  as  absolute 
as  those  voluntarily  conferred  upon  AVebster  by  his  great 
associates  and  clients.  This  fact  immediately  became  known 
to  Judge  Story,  the  counsel  for  the  plaintiffs,  and  their 
clients.  No  man  knew  the  judges,  their  biases,  and  what 
he  had  to  contend  with,  in  and  out  of  court,  better  than 
Pinkney.     His  first  step  showed  the  genius  of  a  commander. 

About  the  first  of  November,  1818,  he  notified  the  op- 
posing counsel  that  he  should  move  for  a  reargument  in 
Trustees  v.  WoodAvard,  and  should  argue  it  himself,  if  the 
court  permitted.  It  is  hardly  possible  that  this  was  not 
made  known  to  Story,  his  great  friend  and  admirer,  and  to 
the  other  judges  of  the  Supreme  Court,  at  an  early  day. 
Webster  and  his  associates  and  clients  conferred,  and  took 
such  steps  at  once  as  they  could  to  prevent  a  reargument. 

Pinkney  never  attempted  to  argue  a  cause  without  the 
most  thorough  preparation,  and  this  case  was  no  exception 
to  the  rule.  In  order  that  nothing  necessary  to  a  correct 
understanding  of  the  cause  might  escape  him,  Pinkney  kept 
Cyrus  Perkins,  the  secretary  of  the  University  board,  at  his 
elbow  for  a  whole  week  preceding  the  session  of  the  Su- 
preme Court,  which  nominally  commenced  on  February  1, 
1819.  Dr.  Perkins  was  professor  of  anatomy  and  surgery 
in  the  medical  department  of  Dartmouth  College.  He 
was  an  able  man  ;  the  family  physician  of  Webster,  and  the 


SUMMARY.  203 

devoted  friend  of  Wheelock.  Pie  had  lived  for  years  in  tiie 
atmosphere  of  these  troubles,  and  knew  the  details  of  their 
history  by  heart,  and  brought  to  this  conference  with  Pink- 
ney  all  the  documentary  evidence  which  it  was  supposed 
would  throw  any  light  upon  the  subject.  On  Monday, 
February  1,  1819,  Pinkncy  went  up  by  pike  from  Balti- 
more to  Washington.  As  all  the  judges  were  not  present, 
the  court  met  formally  on  that  day,  and  adjourned  over  till 
Tuesday,  when  the  business  of  the  session  commenced. 

As  the  counsel  for  the  State  had  no  idea  that  a  decision 
would  be  made  at  that  time,  none  of  them  were  present  at 
the  opening  of  the  court  on  Tuesday  morning  except  Pink- 
ney,  who  sat  near  the  chief  justice,  watching  for  an  oppor- 
tunity to  open  the  battle  with  his  motion  for  a  reargument. 
On  the  morning  of  February  2,  1819,  the  instant  the  judges 
had  taken  their  seats  the  chief  justice  turned  his  "blind 
ear"  towards  Pinkney  (as  tradition  has  it,  and  as  Mills  01- 
cott,  one  of  the  plaintiffs,  used  to  relate  it),  and  shut  off  his 
motion  by  announcing  that  the  judges  had  formed  opinions 
during  the  vacation,  and  immediately  commenced  reading 
his  opinion,  which  was  in  manuscript,  in  his  peculiar  hand- 
writing, and  on  eighteen  folio  pages. 

Judge  Todd  was  absent  from  sickness  ;  Judge  Duvall  dis- 
sented ;  the  remaining  four  judges  simply  ' '  concurred  in 
the  result."  No  opinion  was  ever  delivered  in  court  by  any 
of  the  other  judges.  Some  time  after,  Judges  Washington 
and  Story  handed  their  opinions,  which  appear  in  the  printed 
volume,  to  the  reporter. 

On  February  3,  1819,  the  chief  justice  delivered  the 
opinion  in  the  case  of  Baptist  Association  v.  Hart's  Execu- 
tors, 4  Wheat.  1,  which  overthrew  the  doctrine  of  charita- 
ble uses,  etc.,  in  three  great  States  of  the  Union,  and  which 
has  since  been  overturned  because  it  reasoned  history  out 
of  existence.  This  cause  was  argued  at  the  same  term 
with  the  College  case.  On  February  8  and  9,  Sturges  v. 
Crowninshield  was  argued  ;  and  on  February  17,  1819,  the 


204  DARTMOUTH  COLLEGE  CAUSES. 

chief  justice  delivered  the  opinion  of  the  court  in  that  case, 
Judge  Livingston  not  concurring.  On  February  10  and  11, 
1819,  the  famous  New  Hampshire  case  of  Bullard  v.  Bell 
was  argued  by  Pinkney  and  Wel)ster.  The  defendant  was 
one  of  the  judges  on  the  New  Hampshire  bench  when  the 
College  case  was  decided  by  that  court.  It  was  one  of  the 
Hillsborough  Bank  cases,  of  which  Judge  Bell  was  presi- 
dent, and  involved  the  question  of  his  individual  liability, 
growing  out  of  certain  transactions  of  the  bank.  Pinkney 
was  counsel  for  Bullard,  and  Webster  for  Bell.  It  is  the 
onlv  instance  which  now  occurs  to  us  in  which  these  two 
legal  giants  were  pitted  against  each  other  in  that  arena. 
Each  did  his  best.  The  cause  was  heard  before  six  judges  ; 
each  carried  one-half  the  court  with  him,  and  the  case  was 
never  reported. 

Soon  after  the  reading  of  Judge  Marshall's  opinion,  Web- 
ster moved  that  judgment  be  entered  up  nunc  pro  tunc. 
Judge  Woodward  having  deceased  since  the  last  term.  This 
motion  was  opposed  by  Mr.  Pinkney  and  Mr.  Wirt,  upon 
the  ground  that  the  other  causes  then  upon  the  docket  em- 
braced additional  facts,  and  that  no  final  judgment  should 
be  entered  until  all  the  causes  were  fully  heard. 

On  February  23,  1819,  the  court  granted  the  plaintiffs' 
motion.  On  March  12,  1819,  the  court  adjourned  without 
day,  having  been  in  session  about  six  weeks.  Before  the 
adjournment,  Mr.  Pinkney  attempted  to  avail  himself  of  the 
stipulations  which  came  up  with  the  special  verdicts,  both 
from  the  State  court  and  the  United  States  Circuit  Court, 
that  any  facts  contained  in  the  special  verdict  might  be  ex- 
punged, and  that  any  new  facts  might  be  added,  if  deemed 
material  to  a  right  decision  of  the  cause.  Webster,  with 
characteristic  tact,  refused  to  alloAV  any  fact  either  to  be 
expunged  or  added.  He  thus  forced  a  judgment  against 
Judge  Woodward,  and  compelled  Pinkney  to  "consent" 
that  the  other  causes  should  be  "  remanded  to  the  Circuit 
Court  for  the  District  of  New  Hampshire,  for  further  pro- 


SUMMARY.  205 

ceedings  to  be  had  therein,  according  to  law,"  without  any 
direction  from  the  Supreme  Court. 

The  old  trustees  did  uot  wait  for  the  judgment  in  their 
favor,  but,  as  soon  as  the  news  of  Judge  Marshall's  oiDinion 
reached  them,  made  the  necessary  arrangements,  and  on 
February  8,  1819,  took  possession,  by  virtue  of  the  law  of 
the  strongest,  of  the  College  buildings,  etc.,  which  up  to 
that  time  had  been  held  by  President  Allen,  and  occupied 
by  the  officers  and  students  of  the  University. 

Mr.  Webster  followed  up  his  judgment  by  serving  the 
proper  notices  upon  the  adverse  parties  in  the  causes  in  the 
Circuit  Court,  to  be  ready  for  trial  at  the  May  term,  which 
commenced  on  Saturday,  May  1,  1819.  On  that  day  Judge 
Story  delivered  an  elaborate  opinion,  adverse  to  the  State,  in 
these  causes.  A  judgment  nisi  was  then  rendered  for  the 
plaintiffs,  to  become  absolute  unless  the  defendants,  during 
the  May  term  of  the  court  held  in  Boston  (commencing  May 
15,  1819),  should  produce  such  further  evidence  as  should, 
in  the  opinion  of  Judge  Story,  be  sufficient  cause  for  further 
delay.  On  May  27,  1819,  James  T.  Austin,  one  of  the 
counsel  in  the  interest  of  the  University  in  these  causes, 
presented  the  "new  facts"  to  Judge  Story.  The  judge 
took  the  papers  and  reserved  his  decision.  Story  held  that 
none  of  the  facts  varied  the  case  as  it  had  been  considered 
and  decided,  and  that  none  of  them  contradicted  the  recitals 
of  the  charter,  and  ordered  judgment  and  execution  in  these 
suits.     Technically,  this  was  the  end  of  the  College  causes. 

Webster  now  devoted  his  special  attention  to  pushing  for- 
ward the  publication  of  Farrar's  report,  a  work  that  had 
been  for  some  time  on  his  hands. 

And  finally,  at  the  May  term,  1820,  of  the  Superior  Court, 
judgment  was  rendered  against  the  College,  in  favor  of 
Wheelock's  executor,  and  execution  issued  thereon. 

Justice  to  all  requires  that  we  should  go  beneath  this  sur- 
face outline  and  enter  into  details. 


20t)  DARTMOUTH  COLLEGE  CAUSES, 

If  the  construction  thus  given  to  the  clause  in  relation  to 
the  "  obligation  of  contracts"  is  correct,  it  should  be  up- 
held ;  but  if  founded  in  error,  involving,  as  it  may,  vast  con- 
sequences to  millions,  it  must  be  overthrown.  To  determine 
this  question,  the  decision,  in  its  "inner  and  outer  life," 
must  be  analyzed  and  weighed  dispassionately  in  the  light 
which  has  since  been  thrown  upon  it,  uninfluenced  by  fear 
or  favor,  or  the  shadow  of  great  names,  which,  like  "  hard 
cases,"  so  often  "  make  shipwreck  of  the  law." 

Blocks  of  overruled  cases,  opinions  sv/athed  in  confusion 
and  rolled  in  tangles,  and  decisions  so  inconsistent  and  con- 
tradictory that  no  one  can  reconcile  them,  admonish  us  that 
other  judicial  tribunals,  however  pure,  able,  and  learned,  are 
yet  human,  and  may  err.  We  shall  assume  that  the  judges 
of  the  Federal  Supreme  Court,  in  their  judicial  earth-life, 
are  no  exception  to  the  rule. 

Probably  no  litigant  ever  came  before  that  court  under 
circumstances,  entirely  independent  of  their  merits,  so  un- 
favorable for  success  as  the  State  in  these  causes. 

Judge  Wilson,  who  had  special  opportunities  for  knowing 
the  meanino;  of  the  "  obli oration  "  clause,  had  been  in  his 
grave  more  than  twenty  years  when  the  decision  was  made. 
Apparently  the  history  of  this  clause,  so  far  as  court  and 
counsel  were  concerned,  was  enveloped  in  total  darkness.^ 

Judge  Marshall  naturally  believed  in  a  government  con- 


1  Col.  Haines,  in  his  argument  before  the  Supreme  Court,  at  the  February- 
term,  1824,  in  Ogden  w.  Saunders,  said :  "  What  were  the  intentions  of  those 
who  framed  the  Constitution  when  they  inserted  in  it  the  provision  that '  no 
State  should  pass  a  law  impairing  the  obligation  of  contracts  ? '  Unhappily  for 
this  country  and  for  the  general  interests  of  political  science,  the  history  of  the 
Convention  of  1787,  which  framed  the  Constitution  of  the  United  States,  is 
lost  to  the  world.  We  are  compelled  to  resort  to  contemporaneous  history  in 
giving  a  construction  to  this  Constitution ;  and  it  has  already  been  more  than 
once  intimated  by  this  court,  that  in  giving  expositions  to  the  various  provi- 
sions of  this  great  political  instrument,  it  was  well  to  keep  in  view  the  mischiefs 
which  the  Convention  intended  to  cure  and  prevent." 

In  Edwards  v.  Kearzey,  96  U.  S.  607,  Mr.  Justice  Swayne  says:  "The 
point  decided  in  Dartmouth  College  v.  Woodward  (4  Wheat.  518)  had  not, 
it  is  believed,  when  the  Constitution  was  adopted,  occurred  to  any  one.  There 
is  no  trace  of  it  in  the  Federalist,  nor  in  any  other  contemporaneous  publica- 
tion." 


THE    DECISION COURSE    OF    ARGUMENT.  207 

structed  by  the  rules  of  logic,  and  operated  upon  rigid 
mathematical  princi})les.  The  political  aspect  which  had 
been  forced  upon  the  case,  and  of  which  Mr.  Webster  availed 
himself  with  great  adroitness  in  his  argument,  in  the  eyes 
of  Marshall  transformed  this  case  into  another  Marbury  v. 
Madison  (1  Crauch,  137),  which  was  in  reality  a  judico- 
political  wager  of  battle  between  John  jMarshall  and  Thomas 
Jefferson,  the  two  great  Virginians  whose  political  and 
personal  hate  descended  with  them  to  the  tomb.  The  coun- 
sel for  the  State  were  new  men  in  the  cause,  unfamiliar  with 
the  local  history  and  the  arguments  in  the  State  court, 
inadequately  prepared,  ill-assorted  and  inharmonious,  —  the 
first  immersed  in  politics,  the  second  overloaded  with  busi- 
ness, and  the  third  silent  as  a  consequence  of  his  position 
in  the  case  ;  while,  on  the  other  hand,  the  plaintiffs  not  only 
had  corresponding  advantages,  but  also  that  of  the  learning 
and  industry  of  Smith  and  Mason,  and  of  the  prodigious 
intellectual  power  of  the  great  triumvirate,  —  Mason,  Smith, 
and  Webster, — who  overtopped  alike  the  whole  court,  :iud 
Holmes  and  Wirt,  the  opposing  counsel. 

We  have  seen  that  but  six  of  the  forty-three  pages  of 
Mason's  argument  in  the  State  court  were  devoted  to  the 
"single  point"  which  could  properly  be  mooted  in  tho 
Supreme  Court.  Smith's  great  learning  made  him  more 
diffuse  and  discursive.  Webster's  argument,  etc.,  as  care- 
fully written  out  by  him  for  Farrar,  occupied  forty-six 
pages :  six  pages  were  devoted  to  a  statement  of  the  case, 
ten  to  the  question  before  the  court,  and  thirty  to  the  first 
and  second  points  taken  by  Mason.  In  other  words,  at  least 
three-fourths  of  his  legal  argument  at  Washington  was  upon 
points  not  before  that  court. 

We  give  the  admission  of  this  fact,  and  his  reasons  for 
this  extraordinary  course,  in  Mr.  Webster's  own  words  : 
"  It  will  be  contended  by  the  plaintiffs  that  these  acts  are 
not  valid  and  binding  on  them  loithout  their  assent.  1.  Be- 
cause they  are  against  common  right  and  the  Constitution 


208  DARTMOUTH  COLLEGE  CAUSES. 

of  New  Hampshire.  2,  Because  they  are  repugnant  to  the 
Constitution  of  the  United  States. 

"  [I  am  aware  of  the  limits  which  bound  the  jurisdiction 
of  the  court  in  this  case,  and  that,  on  this  record,  nothing 
can  be  decided  but  the  single  question  whether  these  acts 
are  repugnant  to  the  Constitution  of  the  United  States. 
Yet  it  may  assist  in  forming  an  opinion  of  their  true  nature 
and  character,  to  compare  them  with  these  fundamental 
principles,  introduced  into  the  State  governments  for  the 
purpose  of  limiting  the  exercise  of  the  legislative  power, 
and  which  the  Constitution  of  New  Hampshire  expresses 
with  great  fulness  and  accuracy.] 

*'  It  is  not  too  much  to  assert  that  the  Legislature  of  New 
Hampshire  would  not  have  been  competent  to  pass  the  acts 
in  question,  and  to  make  them  binding  on  the  plaintiffs 
without  their  assent,  even  if  there  had  been,  in  the  Consti- 
tution of  New  Hampshire,  or  of  the  United  States,  no 
special  restriction  on  their  power ;  because  these  acts  are 
not  the  exercise  of  a  power  properly  legislative.  Their 
object  and  effect  is  to  take  away  from  one  rights,  property, 
and  franchises,  and  to  grant  them  to  another.  This  is  not 
the  exercise  of  a  legislative  power.  To  justify  the  taking 
away  of  vested  rights,  there  must  be  a  forfeiture  ;  to  ad- 
judge upon  and  declare  which  is  the  proper  province  of  the 
judiciary."      (Farrar's  Eep.  244.) 

Mr.  Webster's  argument  was  carefully  written  out  by 
him,  with  those  of  Smith  and  Mason  under  his  eye  ;  it  lies 
before  us,  with  its  erasures  and  interlineations.  Pages  of  it 
were  suppressed.  The  part  that  was  printed  was  substan- 
tially unchanged.  The  paragraph  in  brackets  was  not  in 
the  original,  but  was  substituted  for  one  of  an  entirely  dif- 
ferent character. 

If  he  was  right,  if  vested  rights  can  only  be  divested  by 
the  courts,  and  the  rights  in  question  had  vested  in  the  old 
trustees,  he  had  no  occasion  to  invoke  the  aid  of  the  "  obli- 
gation" clause. 


WEBSTER  S    ARGUMENT.  209 

We  have  the  authority  of  Mr.  Webster  for  saying  that, 
aside  from  a  single  point,  and  a  few  authorities  cited  in 
support  of  another,  nothing  as  a  legal  argiiment  was  ad- 
vanced by  him  at  Washington  which  had  not  been  urged  by 
Smith  and  Mason  in  the  State  court. 

Webster,  in  his  letter  to  Mason,  of  December  8,  1817, 
says:  "Judge  Smith  has  written  for  a  form  of  citation, 
etc.,  in  the  College  cause,  which  I  shall  send  him,  &  write 
to  him  for  his  minutes. 

"My  wish  is  to  see  both  him  &  you  before  I  go  to 
Washington.  If  I  should  not  be  kept  in  town  by  the  court, 
as  I  do  not  expect  to,  I  intend  seeing  ^''ou  about  Christmas 
or  New  Year.  Everybody  will  expect  me  at  Washington 
to  deliver  the  Exeter  argument,  therefore  the  Exeter  argu- 
ment must  be  drawn  out  before  I  go.  I  will  spend  a  day  or 
two  on  this  subject  at  Portsmouth,  or  Exeter,  if  you  incline 
that  I  should  do  so. 

"  We  must  have  Richardson's  opinion  a  little  beforehand 
if  we  can,  that  we  may  consider  its  weak  points,  if  there  be 
any  such."     (Mason  Papers;  Harvey's  Webster  Papers.) 

In  his  letter  to  Judge  Smith,  of  December  8,  1817, 
Webster  says:  "  If  I  argue  this  cause  at  Washington, 
every  one  knows  I  can  only  be  the  reciter  of  the  argument 
made  by  you  at  Exeter.  You  are,  therefore,  principally  in- 
terested, as  to  the  matter  of  reputation,  in  the  figure  I 
make  at  Washington.  Nothing  will  be  expected  of  me  but 
decent  delivery  of  your  matter.  This  seems  perfectly  well 
understood  this  way,  and  I  have  been  frequently  compli- 
mented by  gentlemen  saying  that,  if  the  cause  goes  to 
Washington,  they  shall  have  a  chance  of  hearing  something 
of  Judge  Smith's  argument. 

' '  I  have  some  notion  of  going  to  Exeter  for  a  day  or 
two,  to  practice  and  rehearse  before  I  go  to  Washington. 
To  be  serious,  however,  you  and  Mason  must  help  me  ar- 
range the  argument.     The  best  mode  will  be  to  have  it 


210  DARTMOUTH  COLLEGE  CAUSES. 

written  out,  or  all  collected  in  notes,  so  that  I  can  write  it 
out."     (1  Webster's  Priv.  Cor.  268.) 

In  his  letter  to  Judge  Smith,  of  January  9,  1818,  he  says  : 
"  I  must  beg  the  favor  of  all  your  notes.  I  have  not  as- 
surance enough,  although  not  entirely  destitute,  to  think 
of  arguing  this  cause  on  my  own  strength.  To  argue  it  as 
you  did  will  be  more  than  I  shall  ever  be  able  to  do.  I 
wish  to  present  the  cause  fully  and  fairly  to  the  court,  and 
your  notes  will  enable  me  so  to  do.  If  anybody  is  coming 
over,  pray  let  me  have  them  soon,  and  all  of  them.  If  you 
have  no  opportunity  to  send  them  direct,  please  forward 
them  enclosed  to  Mr.  Mason.  I  am  writing  to  him  to-day, 
and  will  ask  him  to  take  care  of  the  packet  and  send  it  to 
me  directly."  (1  Webster's  Priv.  Cor.  269.)  All  these 
"  notes  "  and  "  minutes  "  were  promptly  furnished  to  Mr. 
Webster,  and  were  returned  by  him  to  Mason,  March  22, 
1818.  In  his  letter  of  that  date  to  Mason,  Webster  says  :  "  I 
send  you  your  brief  and  Judge  Smith's  ;  you  may  both  prob- 
ably need  those  hereafter."     (1  Webster's  Priv.  Cor.  278.) 

In  his  letter  to  Judge  Smith,  of  March  14,  1818,  two 
days  after  the  close  of  the  argument,  he  says :  "I  opened 
the  case  with  most  of  the  principles  and  authorities  on 
which  we  relied  at  Exeter.  Your  notes  I  found  to  contain 
the  whole  matter.  They  saved  me  great  labor ;  but  that 
was  not  the  best  part  of  their  service  ;  they  put  me  in  the 
right  path,  and  conduct,  as  I  think,  to  an  irresistible 
conclusion.  On  some  parts  of  the  case  I  have  varied  my 
Adews  a  little.  The  rogues  here  in  Congress  complain  that 
the  cause  was  put  on  grounds  not  stated  in  the  court  below. 
There  is  little  or  nothing  in  this.  I  labored  the  point  that 
it  was  a  private  corporation,  a  charity.  Eleazer  Wheelock, 
its  founder,  as  such,  entitled  generally  by  law  to  be  visitor  ; 
all  the  power  of  visitor  assigned,  in  law,  by  him  to  the 
trustees,  etc.  The  only  new  aspect  of  the  argument  was 
produced  by  going  into  cases  to  prove  these  ideas,  which 


SOURCE  OF  HIS  ARGUMENT.  211 

indeed  lie  at  the  very  bottom  of  your  argument."  ( 1  Web- 
ster's Priv.  Cor.  276.) 

In  his  letter  of  April  23,  1818,  to  Mason,  Webster  says  : 
'<  As  to  the  college  cause,  I  cannot  argue  it  any  more,  I 
believe.  I  have  told  you  very  often  that  you  and  Judge 
Smith  argued  it  very  greatly.  If  it  was  well  argued  at 
Washington,  it  is  a  j^roof  that  I  was  right,  because  all  that 
I  said  at  Washington  was  but  those  two  arguments,  clumsily 
put  together  by  me.  I  do  not  mean  to  hold  you  answerable 
for  any  deficiencies  ;  but  in  truth  I  have  little  right  to  claim 
the  merit,  if  there  be  any,  in  the  opening  of  our  case." 
(1  Webster's  Priv.  Cor.  280. )  In  his  Sunday  evening  letter 
to  Mason,  he  says  :  '<  There  is  one  point  on  which  I  have 
suspected  that  my  opinion  difiers  from  Judge  Smith' s  ;  I 
think  that  the  trustees  are  most  clearly  visitors,  and  that 
this  lies  at  the  bottom  of  our  case,  and  as  visitors,  I  think 
they  are  not  answerable  in  any  court,  while  acting  within 
the  scope  of  their  visitorial  power.  I  should  be  glad  you 
would  think  of  this  a  little.  If  I  am  in  an  error,  it  is  a 
pretty  important  error."     (1  Webster's  Priv.  Cor.  311.) 

In  his  letter  to  Mason,  of  April  10,  1819,  Webster  says  : 
*'  My  own  interest  will  be  promoted  hy  preventing  the  book 
[Farrar's  report].  I  shall  strut  well  enough  in  the  Wash- 
ington report,  &  if  the  '  book  '  should  not  be  published,  the 
world  would  not  know  where  I  borrowed  my  plumes.  But  I 
am  still  inclined  to  have  the  book.  One  reason  is  that  vou 
&  Judge  Smith  may  have  the  credit  which  belongs  to  you. 
Another  is,  I  believe  Judge  Story  is  strongly  of  opinion  it 
would  be  a  useful  work,  that  Wheaton's  reports  go  only  into 
the  hands  of  professional  men,  but  that  this  book  might  be 
read  by  other  classes,  &c.  &c.  If  it  should  be  decided  at  May 
term  that  another  cause  should  go  to  Washington,  I  should 
be  very  unwilling  to  have  the  book  published,  but  I  have 
hitherto  had  a  strong  belief  we  should  finish  the  actions  at 
May  court.     I  think  so  still,  but  very  probably  may  be  dis- 


212  DARTMOUTH  COLLEGE  CAUSES. 

appointed.  I  should  be  for  pressing  the  judge  to  adjourn 
for  a  short  time  rather  than  continue  the  causes.  I  think 
he  will  feel  the  propriety  of  settling  the  controversy  as  far 
as  may  be  done.  I  shall  come  down,  accidents  excepted  & 
very  possibly  Mrs.  W.  may  attend  the  same  court."  (Mason 
Papers  ;  Harvey's  Webster  Papers.) 


CHAPTER    YIII. 

HISTORY  OF  THE  OBLIGATION  CLAUSE  — JUDGE  WILSON 
ITS  AUTHOR  — MEANING  OF  IT  — DEBATES  IN  THE  FEDERAL 
CONTENTION- ARGUMENT  OP  COL.  HAINES  — VIEW  OF 
WILSON,  ELLSWORTH,  LUTHER  MARTIN,  GOUVERNEUR 
MORRIS,  AUSTIN,  AND  OTHERS. 

Aet.  I.,  sect.  10,  of  the  Constitution  provides  that  "no 
State  shall  *  *  *  pass  any  *  *  «  j^w  impairing 
the  obligation  of  contracts."  This  phrase  is  not  the  lan- 
guage of  the  common  law.  We  did  not  derive  it  from  the 
mother  country.     We  find  its  source  elsewhere. 

Nathan  Dane,  the  author  of  "  Dane's  Abridgment,"  and 
to  whom  the  Harvard  Law  School  is  so  much  indebted,  was 
a  Massachusetts  lawyer.  He  was  born  in  1752,  and  was 
admitted  to  the  bar  when  thirty  years  old.  He  was  a  mem- 
ber of  the  Continental  CongTess  in  1785-6-7.  In  1786  it 
was  found  necessary  to  establish  a  form  of  government  over 
the  vast  region  then  known  as  the  '*  North-west  Territory." 
The  task  of  drafting  it  was  assigned  to  Dane,  then  thirty- 
four  years  old.  On  July  13,1787,  the  expiring  Congress,  — 
the  Convention  for  framing  the  present  Constitution  being 
then  in  session, — though  without  "the  least  color  of  con- 
stitutional authority,"  adopted  the  ordinance  without  a 
single  alteration.  One  of  its  provisions  (we  use  the  italics 
of  the  author)  was:  "And  in  the  just  preservation  of 
rights  and  property,  it  is  understood  and  declared,  that  no 
law  ought  ever  to  be  made,  or  to  have  force  in  said  terri- 
tory, that  shall,  in  any  manner  whatever,  interfere  with  or 
affect  private  contracts  or  engagements,  bond  fide  and  with- 
out fraud,  previously  formed." 

(213) 


214  DARTMOUTH  COLLEGE  CAUSES. 

That  the  prune  purpose  of  this  clause  was  to  prohibit 
the  Legislatures  of  the  expectant  States  from  interfering 
trorespectively  with  the  enforcement  of  private  executory 
contracts  is  obvious  ;  that  the  clause  adopted  by  the  Fed- 
eral Convention  was  intended  to  restrict,  rather  than  to 
enlarge,  the  scope  of  the  clause  in  the  ordinance,  seems 
clear. 

That  Convention  nominally  met  on  May  14,  1787.  It 
formally  concluded  its  labors  on  September  17,  1787.  From 
time  to  time  the  "obligations  of  the  Federal  pact,"  the 
"  obligations  of  the  Confederacy,"  the  difference  between 
"  moral  obligation  "  and  "  political  operation,"  the  "  obli- 
gation "  of  States  and  those  of  the  United  States,  had  been 
discussed  by  the  leading  minds  in  the  Convention,  — Judge 
Ellsworth,  Judge  Wilson,  Mr.  Gerry,  and  Dr.  Johnson. 
On  August  27,  1787,  when  discussing  the  clause  conferring 
jurisdiction  on  the  Federal  judiciary,  in  answer  to  Gouv- 
erneur  Morris  (the  able  and  adroit  man  who  did  the  work 
of  the  committee  on  style,  and  gave  the  "finish"  to  the 
final  draught  of  the  Constitution),  who  proposed  the  ques- 
tion, "  whether  it  is  extended  to  matters  of  fact  as  well  as 
law,  and  to  cases  of  common  law  as  well  as  civil  law," 
Judge  Wilson  (who  was  even  more  to  the  committee  on 
detail  than  Morris  to  that  on  style)  said  :  "  The  committee, 
he  believed,  meant  facts  as  well  as  law,  and  common  as  well 
as  civil  law.  The  jurisdiction  of  the  Federal  Court  of 
Appeals  had,  he  said,  been  so  construed."  On  August  28, 
1787,  Judge  Wilson  and  Mr.  Sherman  moved  to  insert  after 
the  words  "coin  money,"  in  Art.  XII.  of  the  new  Con- 
stitution, as  reported  by  the  committee  on  detail,  of  which 
Judge  Wilson  was  a  leading  member,  the  words,  "  nor  emit 
bills  of  credit,  nor  make  an}i;hing  but  gold  and  silver  coin 
a  tender  in  payment  of  debts."  After  a  brief  debate,  the 
amendment  was  adopted.  IVIr.  King,  of  Massachusetts,  then 
moved  to  add  the  clause  in  the  ordinance  of  1787  which  we 


DANE THE  OBLIGATION  CLAUSE.  215 

have  quoted  from  Mr.  Dane.     The   following   debate    en- 
sued :  — 

"Mr.  Gouverneur  Morris. — This  would  be  going  too  far. 
There  are  a  thousand  laws  relating  to  bringing  actions,  limitations 
of  actions,  etc.,  which  affect  contracts.  The  judicial  power  of 
the  United  States  will  be  a  protection  in  cases  within  their  jurisdic- 
tion ;  and  within  the  State  itself  a  majority  must  rule,  whatever 
may  be  the  mischief  done  among  themselves. 

"Mr.  Sherman.  —  Why  then  prohibit  bills  of  credit? 

"Mr.  Wilson  was  in  favor  of  Mr.  King's  motion. 

"Mr.  Madison  admitted  that  inconveniences  might  arise  from 
such  a  prohibition  ;  but  thought,  on  the  whole,  it  would  be  over- 
balanced by  the  utility  of  it.  He  conceived,  however,  that  a 
negative  on  the  State  laws  could  alone  secure  the  effect.  Evasions 
might  and  would  be  devised  by  the  ingenuity  of  the  Legislatures. 

"Col.  Mason. — This  is  carrying  the  restraint  too  far.  Cases 
will  happen  that  cannot  be  foreseen,  where  some  kind  of  interfer- 
ence will  be  proper  and  essential.  He  mentioned  the  case  of 
limiting  the  period  for  bringing  actions  on  open  account  —  that  of 
bonds  after  a  certain  lapse  of  time  —  asking,  whether  it  was  proper 
to  tie  the  hands  of  the  States  from  making  provision  in  such  cases. 

"Mr.  Wilson. — The  answer  to  these  objections  is,  that  retro- 
spective interferences  only  are  to  be  prohibited. 

"  Mr.  Madison.  — Is  not  that  already  done  by  the  prohibition  of 
ex  post  facto  laws,  which  will  oblige  the  judges  to  declare  such 
interferences  null  and  void? 

"  Mr.  Rutledge  moved,  instead  of  Mr.  King's  motion,  to  insert, 
'  nor  pass  bills  of  attainder,  nor  retrospective  laws.'  " 

On  which  motion  seven  States  voted  aye,  and  three  no. 

On  August  29,  1787,  "Mr.  Dickinson  mentioned  to  the 
House  that,  on  examining  Blackstone's  Commentaries,  he 
found  that  the  term  '  ex  post  facto '  related  to  criminal 
cases  only  ;  that  they  would  not  consequently  restrain  the 
States  from  retrospective  laws  in  civil  cases  ;  and  that  some 
further  provision  for  this  purpose  would  be  requisite." 

On  September  12,  1787,  Dr.  Johnson,  from  the  committee 
on   style,    etc.,    which   consisted   of   Johnson,    Hamilton, 


216  DARTMOUTH    COLLEGE    CAUSES. 

Gouverneur  Morris,  Madison,  and  King,  reported  the  Con- 
stitution in  a  new  draft.  Sect.  1  of  Art.  X.  provided: 
"No  State  shall  coin  money,  or  emit  bills  of  credit,  or 
make  anything  but  gold  or  silver  coin  a  tender  in  payment 
of  debts,  or  pass  any  bill  of  attainder,  or  ex  post  facto 
laws,  or  laws  altering  or  impairing  the  obligation  of  con- 
tracts, or  grant  letters  of  marque  and  reprisal,  or  enter 
into  any  treaty,  alliance  or  confederation,  or  grant  any  title 
of  nobility." 

On  September  14,  1787,  "  Col.  Mason  moved  to  strike 
out  from  the  clause  '  no  bill  of  attainder,  nor  any  ex  post 
facto  law,  shall  be  passed,'  the  words  '  nor  any  ex  post 
facto  law.'  He  thought  it  not  sufficiently  clear  that  the 
prohibition  meant  by  this  phrase  was  limited  to  cases  of  a 
criminal  nature  ;  and  no  legislature  ever  did  or  can  alto- 
gether avoid  them  in  civil  cases. 

"Mr.  Gerry  seconded  the  motion;  but  with  a  view  to 
extend  the  prohibition  to  '  civil  cases,'  which  he  thought 
ought  to  be  done. 

"  On  the  question,  all  the  States  were,  no." 

Later  in  the  same  day,  but  on  whose  motion  does  not  ap- 
pear, the  order  of  the  clauses  in  sect.  10  of  Aii;.  I.,  which 
we  have  quoted,  was  changed  (the  word  "  altering"  being 
ex|3unged  from  the  "  obligation  "  clause)  so  as  to  read,  "  No 
State  *  *  *  shall  pass  *  *  *  any  *  *  *  or 
law  impairing  the  obligation  of  contracts,"  etc. 

"Mr.  Gerry  entered  into  observations  inculcating  the 
importance  of  public  faith,  and  the  propriety  of  the  restraint 
put  on  the  States  from  impairing  the  obligation  of  con- 
tracts, alleging  that  Congress  ought  to  be  laid  under  the 
like  prohibitions.  He  made  a  motion  to  that  effect.  He 
was  not  seconded." 

The  peculiar  phraseology  of  the  ' '  obligation ' '  clause  has 
for  many  years  been  ascribed  to  Judge  Wilson.^ 

^  Our  attention  has  been  called  by  Hon.  Clement  Hugh  Hill,  the  author  of 
the  article  on  the  Dartmouth  College  case  in  the  January  number,  1874,  of 


DEBATES    IN    THE    CONVENTION.  217 

We  are  not  aware  that  he  ever  made  any  public  claim  to 
it ;  but  it  has  his  distinctive  ' '  ear-marks. ' '  That  he  moulded 
the  phrase  is  hardly  an  open  question,  though  it  undoubt- 
edly passed  under  the  eye  of  Madison  and  Gouverneur 
Morris.  Madison,  manifestly  referring  to  the  evils  which 
sect.  10,  Art.  I.,  was  intended  to  prevent,  said:  "In  the 
internal  administration  of  the  States,  a  violation  of  con- 
tracts had  become  familiar,  in  the  form  of  depreciated  paper 
made  a  legal  tender,  of  property  substituted  for  money,  of 
instalment  laws,  and  of  the  occlusions  of  the  courts  of  jus- 
tice, although  evident  that  all  such  interferences  affected  the 
rights  of  other  States,  relatively  creditors,  as  well  as  citizens 
creditors,  within  the  State."  That  Mr.  Madison  here  re- 
ferred to  executory  contracts  is  too  obvious  for  comment. 
The  great  knowledge  of  Mr.  Madison,  his  experience, 
diplomatic  tact,  and  judicial  temper,  made  him  the  central 
figure  in  that  Amphictyonic  council  of  great  men  ;  though 
he  lacked  the  slow  but  powerful  intellect  of  Ellsworth,  the 
great  legal  learning  of  Luther  Martin,  and  the  commanding 
genius  of  Hamilton. 

Chief  Justice  Ellsworth  was  a  leading  member  of  the 
Federal  Convention.  On  September  26,  1787,  he  and  his 
colleague,  Sherman,  addressed  a  communication  in  the  na- 
ture of  a  report  to  the  governor  of  Connecticut.  They  said  : 
"  The  restraint  on  the  Legislatures  of  the  several  States, 
*     *     *     impairing  the  obligation  of  contracts  by  ex  post 

the  American  Law  Review,  to  the  following  quotation  from  the  argument  of 
Mr.  Hunter,  in  Sturges  v.  Crowninshield :  "  The  judges  of  the  State  courts  and 
of  this  court  have  confessed  that  there  is  in  these  words,  '  impairing  the  obli- 
gation of  contracts,'  an  inherent  obscurity.  Surely  then,  here,  if  anywhere, 
the  maxim  must  apply,  Semper  in  obseuris  quod  7ni)iimum  est  sequhnur.  They 
are  not  taken  from  the  English  common  law,  or  used  as  a  classical  or  technical 
term  of  our  jurisprudence  in  any  book  of  authority.  No  one  will  pretend  that 
these  words  are  drawn  from  any  English  statute,  or  from  the  States'  statutes 
before  the  adoption  of  the  Constitution.  "Were  they,  then,  furnished  from  that 
great  treasury  and  reservoir  of  rational  jurisprudence,  the  Roman  law?  "We 
are  inclined  to  believe  this.  The  tradition  is  that  Mr.  Justice  "Wilson,  who  was 
a  member  of  the  Convention,  and  a  Scottish  lawyer,  and  learned  in  the  civil 
law,  was  the  author  of  this  phrase."  (4  "Wheat.  151.)  Mr.  Hunter  was  from 
Rhode  Island,  an  eminent  lawyer,  familiar  with  the  history  of  the  times,  and 
of  the  public  men  who  framed  the  Constitution. 


218  DARTMOUTH  COLLEGE  CAUSES. 

facto  laws,  was  thought  necessary  as  a  security  to  commerce 
in  which  the  interest  of  foreigners  as  well  as  the  interests  of 
citizens  of  different  States  may  be  affected." 

The  phraseology  used  shows  that  they  understood  this 
clause  to  mean  in  civil  causes  what  the  ex  jpost  facto  clause 
meant  in  criminal  ones. 

Charles  Glidden  Haines,  in  his  argument  at  the  Febru- 
ary term,  1824,  before  the  Supreme  Court  of  the  United 
States,  in  Ogden  v.  Saunders,  said:  "In  consulting  the 
debates  of  the  Virginia  Convention,  convened  at  Eichmond 
in  June,  1788,  *  *  *  for  the  purpose  of  deliberating 
on  the  expediency  of  adopting  the  Constitution,  we  find  that 
the  section  which  relates  to  the  obligation  of  contracts  was 
discussed  by  the  great  men  of  that  public  body.  Patrick 
Henry,  George  Mason,  George  Nicholas,  James  Madison, 
and  Governor  Kandolph  participated  in  the  debates  to  which 
the  section  gave  rise,  and  the  three  former  considered  the 
expressions  ex  post  facto  laws,  and  laius  impairing  the  ob- 
ligations of  contracts  as  meaning  the  same  thing,  and  as  re- 
lating to  the  redemption  of  Continental  money  and  calcu- 
lated to  gratify  the  cupidity  of  speculation.  Mr.  Madison 
corrected  these  erroneous  impressions  ;  and  Governor  Ran- 
dolph, after  he  had  correctly  defined  the  legal  and  technical 
meaning  of  the  term  ex  post  facto  laws,  as  presented  by  the 
common-law  writers,  also  speaks  of  the  wholesome  prohibi- 
tion relating  to  contracts.  '  lam,'  says  he,  '  a  warm  friend 
to  the  prohibition,  because  it  must  be  promotive  of  virtue 
and  justice,  and  preventive  of  injustice  and  fraud.  If  we 
take  a  review  of  the  calamities  which  have  befallen  our  rep- 
utation as  a  people,  we  will  find  they  have  been  produced 
by  frequent  interferences  of  the  State  Legislatures  with 
private  contracts.  If  you  inspect  the  great  corner-stone  of 
Republicanism,  you  ^dll  find  it  to  be  justice  and  honor.' 

"  Luther  Martin,  whose  vigor  of  intellect  and  profound  re- 
searches are  justly  appreciated  by  those  who  knew  him  in 
the   days  of  his  pride  and  strength,  acted  a  distinguished 


HAINES LUTHER    MARTIN.  219 

part  in  this  country  when  the  Constitution  was  framed,  and 
he  has  told  us  what  was  intended  by  the  Convention  of  1787, 
of  which  he  was  a  member  from  the  State  of  Maryland,  by 
the  insertion  of  this  prohibition.  After  speaking  of  the 
disability  on  the  part  of  the  States  to  emit  bills  of 
credit,  he  makes  these  remarks  :  '  The  same  section  also 
puts  it  out  of  the  power  of  the  States  to  make  anything  but 
gold  and  silver  coin  a  tender  in  payment  of  debts,  or  to 
pass  any  laws  impairing  the  obligation  of  contracts.'  'I 
considered,'  continues  he,  '  that  there  might  be  times  of 
such  great  public  calamities  and  distress,  and  of  such  ex- 
treme scarcity  of  specie  as  should  render  it  the  duty  of  a 
government,  for  the  preservation  of  even  the  most  valuable 
part  of  its  citizens,  in  some  measure  to  interfere  in  their 
favor  by  passing  laws  totally  or  partially  stopping  the  courts 
of  justice,  or  authorizing  the  debtor  to  pay  by  instalments, 
or  by  delivering  up  his  property  to  his  creditors,  at  a  rea- 
sonable and  honest  valuation.  The  times  have  been  such  as 
to  render  regulations  of  this  kind  necessary  in  most  or  all 
of  the  States,  to  prevent  the  wealthy  creditor  and  the 
monied  man  from  totally  destroying  the  poor  though  even 
industrious  debtor.  Such  times  may  again  arrive.  I  there- 
fore voted  against  depriving  the  States  of  this  power,  —  a 
power  which  I  am  confident  they  ought  to  possess,  but 
which  I  admit  ought  only  to  be  exercised  on  very  important 
and  urgent  occasions.'  So  spoke  this  efficient  member  of 
the  Convention  in  his  communication  to  the  Lefidslature  of 
Maryland. 

' '  With  the  correctness  or  error  of  his  opinions  the  court 
has  no  concern ;  but  when  he  expressly  points  to  the  ob- 
jects which  it  was  intended  to  accomplish  by  a  specific 
section  of  the  Constitution,  and  when  he  makes  his  exposi- 
tions fresh  from  the  hall  of  the  Convention  itself,  and  details 
the  evils  to  be  remedied,  great  respect  and  deference  are 
due  to  his  disclosures  to  the  Legislature  of  the  State  from 
which  he  was  a  delegate." 


220  DARTMOUTH  COLLEGE  CAUSES. 

Judge  Wilson  was  a  Scotchman.  He  was  educated  at 
Edinburgh  and  Glasgow.  When  about  twenty-five  years 
old,  he  emigrated  to  Philadelphia,  and  afterwards  lived  in 
the  States  of  Pennsylvania  and  Maryland.  He  soon  became 
a  legal  celebrity.  For  six  out  of  the  twelve  years  of  its 
existence,  he  was  a  member  of  the  Continental  Congress. 
He  was  a  man  of  superior  abilities,  and  possessed  great 
learning. 

He  was  not  only  a  master  of  the  civil  law,  but  of  the 
French  and  Scotch  law,  which  had  the  civil  law  for  its  basis, 
and  of  the  common  law  as  well.  He  was  in  favor  of  a  strong 
central  government,  as  was  his  colleague,  Gouverneur  Mor- 
ris, and  Hamilton  ;  but  they  differed  very  much  in  their 
views.  Hamilton  regarded  the  British  government  as  the 
proper  model,  but  Judge  Wilson  did  not ;  he  proposed  to 
build  anew  from  the  foundation,  while  preserving  the  auton- 
omy of  the  States. 

In  his  lectures  to  the  law  school  upon  the  "  general  prin- 
ciples of  law  and  obligation,"  etc.,  prepared  within  a  year 
after  the  Federal  Constitution  went  into  operation,  he  criti- 
cises Blackstone's  definition  of  municipal  law  and  its  *'  ob- 
ligation," with  a  severity  scarcely  equalled  by  Austin  and 
his  admirers,  at  a  later  day,  upon  other  points.  With  Wil- 
son, all  forms  of  government  and  all  laws  were  "  con- 
tracts." He  says:  "We  find  that  an  act  which,  consid- 
ered indistinctly  and  dignified  by  the  name  of  law,  requires 
the  whole  supreme  power  of  a  nation  to  give  it  birth,  is, 
when  viewed  more  closely  and  analyzed  into  the  compo- 
nent parts  of  its  authority,  properly  arranged  under  the 
class  of  contracts.  It  is  a  contract  to  which  there  are  three 
parties  ;  those  who  constitute  one  of  the  three  parties,  not 
acting  even  in  public  characters."  *'  The  plain  and  simple 
analysis  which  I  have  given  of  the  nature  and  obligation  of 
acts  of  Parliament,  is  evidently  countenanced  by  the  ex- 
pressive legal  language  of  my  Lord  Hale.  It  is  supjiorted 
and  confirmed  by  the  very  respectable  authority  of  my  Lord 


JUDGE    WILSON THE    CIVIL    LAW.  221 

Hardwicke.  'The  binding  force,' — I  use  his  very  words 
as  they  are  reported,  — '  the  binding  force  of  these  acts  of 
Parliament  arises  from,'  "etc.  "  Sir  William  Blackstone 
tells  us  that  the  original  of  the  obligation  which  a  compact 
carries  with  it  is  different  from  that  of  a  law.  The  original 
of  the  obligation  of  a  compact  we  know  to  be  consent :  the 
original  of  an  act  of  Parliament  we  have  traced  minutely  to 
the  very  same  source."  "  In  the  eye  of  the  common  law, 
marriage  appears  in  no  other  light  than  that  of  a  civil  con- 
tract ;  and  to  this  contract  the  agreement  of  the  parties,  the 
essence  of  every  rational  contract,  is  indispensably  re- 
quired." In  his  lectures,  he  says  of  the  common  law  :  *'  It 
prescribes  the  manner  and  the  ohligation  of  contracts;  it 
establishes  the  rules  by  which  contracts,  wills,  deeds,  and 
even  acts  of  Parliament  are  interpreted."  (1  Wilson's 
Works,  205.)  The  italics  are  ours.  Unless  the  contrary 
clearly  appeared  in  the  context,  it  would  be  a  great  stretch 
of  imagination  to  say  that  the  author,  by  the  phrase  "  obli- 
gation of  contracts,"  meant  the  irrevocable  effect  of  deeds 
or  estates  in  fee-simple,  vested  by  grant.  The  sharp  con- 
trast between  these  terms  is  enhanced  (taking  into  consid- 
eration his  familiarity  with  Justinian  and  Domat)  by  his  as- 
sertion that  "  the  common  law,  as  it  respects  contracts  and 
personal  j)roperty,  discovers  evident  traces  of  the  Roman 
jurisprudence.  *  *  *  x  suggest,  merely  for  considera- 
tion at  present,  a  conjecture  that  many  of  those  parts  were 
incorporated  into  the  common  law  during  the  long  period 
of  near  four  centuries,  when  the  Roman  jurisprudence  pre- 
dominated in  England.  *  *  *  The  person  to  whom  the 
right  belonged,  and  the  person  against  whom  it  existed, 
were  said  in  Roman  law  to  be  bound  by  an  obligation,  the 
notion  of  an  obligation  being  that  of  a  tie  between  two  par- 
ties of  such  a  nature  as  to  confer  on  the  one  a  power  of 
compelling  by  action  the  other  to  give,  do,  or  make  good 
something.  The  obligation  did  not  give  any  interest  in  a 
thing,  to  get  which  might  be  the  ultimate  object  of  the  pro- 
ceeding, but  only  gave  a  means  of  acquiring  it,  or,  under 


222  DARTMOUTH  COLLEGE  CAUSES. 

the  Praetorian  system,  its  value."  (Sandars'  Justin.,  by 
Hammond,  43.)  "An  obligation  is  a  tie  of  law  which 
binds  us  according  to  the  rules  of  our  civil  law  to  render 
something."  (Sandars'  Justin.  396.)  "They  arise  ex 
contractu  or  quasi  ex  contractu j  ex  maleficio  or  quasi  ex 
7naleficio .""     (Sandars'  Justin.  397.) 

Wilson  defines  a  State  as  "an  artificial  person :  it  has  its 
affairs  and  its  interests  ;  it  has  its  rules  ;  it  has  its  obliga- 
tions ;  and  it  has  its  rights.  It  may  acquire  property,  dis- 
tinct from  that  of  its  members  ;  it  may  incur  debts,  to  be 
discharged  out  of  the  public  stock,  not  out  of  the  private 
fortunes  of  individuals  ;  it  may  be  bound  by  contracts,  and 
for  damages  arising  quasi  ex  contractu.^ '  ' '  Smaller  societies 
may  be  formed  within  a  State  by  a  part  of  its  members. 
These  societies  also  are  deemed  to  be  moral  persons,  but  not 
in  a  state  of  natural  liberty  ;  their  actions  are  cognizable  by 
the  superior  power  of  the  State,  and  are  regulated  by  its 
laws.  To  these  societies  the  name  of  corporation  is  gener- 
ally appropriated,"  etc.  He  indorsed  the  common-law  doc- 
trine that  "  the  king  and  the  Parliament  are  corporations." 

In  his  lecture  upon  corporations,  he  says:  "  It  must  be 
admitted,  however,  that  in  too  many  instances  those  bodies 
politic  have,  in  their  progress,  counteracted  the  design  of 
their  original  formation.  Monopoly,  superstition,  and  igno- 
rance have  been  the  unnatural  offspring  of  literary,  religious, 
and  commercial  corporations.  This  is  not  mentioned  with 
a  view  to  insinuate  that  such  establishments  ought  to  be 
prevented  or  destroyed  ;  I  mean  only  to  intimate  that  they 
should  be  erected  with  caution,  and  inspected  with  care." 
(2  Sandars'  Justin.  226.)  Had  Judge  Wilson  drawn  his 
inspiration  from  the  French  jurists,  it  would  have  been  with 
the  same  result. 

Pothier  commenced  his  great  work  when  Wilson  was  six 
years  old,  and  died  in  1772.  He  says  :  "  The  term  obliga- 
tion has  two  significations.  In  its  most  extensive  significa- 
tion, lato  sensu,  it  is  synonymous  with  the  term  duty,  and 
comprehends  imperfect  as  well  as  perfect  obligations." 


POTHIER WILSON MORRIS.  223 

**  The  term  obligation,  in  a  sense  more  proper  and  less 
extensive,  comprehends  only  perfect  obligations,  which  are 
called  also  personal  engagements,  giving  to  him  with  whom 
they  are  contracted  the  right  of  requiring  the  performance 
of  them  ;  and  it  is  of  this  kind  of  obligation  that  we  mean 
to  speak  in  this  treatise."  The  frequent  use  of  this  term 
by  Judge  Wilson,  in  both  senses,  shows  how  thoroughly  he 
understood  its  meaning. 

If  Wilson  and  Morris  failed  to  comprehend  the  full  bear- 
ing of  this  clause  upon  the  power  of  legislatures  over  cor- 
porations, it  is  safe  to  assume  that  no  one  in  or  outside  of 
the  Convention  did. 

They  had  special  reasons  for  examining  it  with  care.  In 
1785  they  were  counsel  for,  and  argued  the  great  cause  of, 
the  Bank  of  North  America,  then  pending  before  the  Legis- 
lature of  Pennsylvania.  In  that  argument,  Wilson  said  : 
* '  I  am  far  from  opposing  the  legislative  authority  of  the 
State,  but  it  must  be  observed  that,  according  to  the  prac- 
tice of  the  Legislature,  public  acts  of  very  different  kinds  are 
drawn  and  promulgated  under  the  same  form.  A  law  to 
vest  or  confirm  an  estate  in  an  individual,  a  law  to  incorpo- 
rate a  congregation  or  other  society,  a  law  respecting  the 
rights  and  properties  of  all  the  citizens  of  the  State,  aro 
all  passed  in  the  same  manner,  are  all  clothed  in  the 
same  dress  of  legislative  formality,  and  are  all  equallj- 
acts  of  the  representatives  of  the  freemen  of  the  Common- 
wealth. 

"  But  surely  it  will  not  be  pretended  that  after  laws  of 
those  different  kinds  are  passed,  the  Legislature  possesses 
over  each  the  same  discretionary  power  of  repeal.  *  *  * 
Still  more  different  is  the  case  with  regard  to  a  law  by 
which  an  estate  is  vested  or  confirmed  in  an  individual :  if 
in  this  case  the  Legislature  may,  at  discretion,  and  without 
any  reason  assigned,  devest  or  destroy  his  estate,  then  a 
person  seized  of  an  estate  in  fee-simple,  under  legislative 
sanction,  is  in  truth  nothing  more  than  a  solemn  tenant  at 


224  DARTMOUTH  COLLEGE  CAUSES. 

y^-^Y[ !  *  *  *  Xo  receive  the  legislative  stamp  of  sta- 
bility and  permanency,  acts  of  incorporation  are  applied  for 
from  the  Legislature.  If  these  acts  may  be  repealed  with- 
out notice,  without  accusation,  without  hearing,  without 
proof,  without  forfeiture ;  where  is  the  stamp  of  their 
stability?  "     (3  Wilson's  Works,  414,  415.) 

Morris  said  :  ' '  They  know  that  the  boasted  omnipotence 
of  legislative  authority  is  but  a  jingle  of  words  ;  in  the  literal 
meaning  it  is  impious.  And  whatever  interpretation  lawyers 
may  give,  freemen  must  feel  it  to  be  absurd  and  unconstitu- 
tional. Absurd,  because  laws  cannot  alter  the  nature  of 
things  ;  unconstitutional,  because  the  Constitution  is  no  more 
if  it  can  be  changed  by  the  Legislature.  A  law  was  once 
passed  in  New  Jersey  which  the  judges  pronounced  to  be  un- 
constitutional, and  therefore  void.  Surely  no  good  citizen 
can  wish  to  see  this  point  decided  in  the  tribunals  of  Pennsyl- 
vania. Such  power  in  judges  is  dangerous  ;  but  unless  it 
somewhere  exists,  the  time  employed  in  framing  a  bill  of 
rights  and  form  of  government  was  merely  thrown  away. 

' '  The  doubt  which  arises  on  this  occasion  as  to  the  extent 
of  your  authority  is  not  founded  on  the  charter  granted  by 
Congress  ;  but,  supposing  the  incoi'p oration  of  the  bank  to 
have  been  the  same  in  its  origin  as  that  of  a  church,  we  ask 
whether  the  existence  and  the  rights  acquired  by  law  can  be 
destroyed  by  law.  Negroes  have  by  law  acquired  the  rights 
of  citizens  ;  would  a  subsequent  law  take  that  right  away? 
It  is  not  true  that  the  right  to  give  involves  the  right  to 
take.  A  father,  for  instance,  has  no  power  over  the  life  of 
his  child ;  nor  can  a  felon  or  traitor,  pardoned  by  act  of 
grace,  be  by  repeal  of  that  act  condemned  and  executed. 
Should  an  act  be  passed  to  cancel  the  public  debts,  would 
that  act  be  valid  ?  Where  an  estate  has  been  granted  by  law, 
can  it  be  revoked  by  a  subsequent  law?  Could  the  lands 
forfeited  and  sold  be  resumed,  and  conveyed  to  the  original 
owners  ?  Many  such  questions  might  be  put,  and  a  judicial 
decision,  either  affirmative  or  negative,  would  be   incon- 


WILSON AUSTIN.  225 

venient  and  dangerous.  Look,  then,  to  the  end,  ere  jou 
commence  the  labor."     (3  Life  of  Morris,  438,  439.) 

Li  the  Convention  of  Virginia,  of  which  he  was  a  member, 
which  ratified  the  Federal  Constitution,  Judge  Marshall, 
upon  grave  consideration,  informed  the  people  of  Virginia 
that  though  a  State  might  sue  upon  a  contract,  it  could  not 
be  sued ;  in  other  words,  that,  notwithstanding  the  State 
suability  clause,  the  "obligation  of  contracts,"  in  a  con- 
stitutional sense,  was  a  stick  with  but  one  end. 

But  in  Chisholm  v.  Georgia,  decided  in  1793,  which  was 
assumpsit  against  a  State  for  the  recovery  of  money.  Judge 
Wilson,  after  reasserting,  in  substance,  the  definition  of  a 
State  quoted  by  us  from  his  lectures,  held  otherwise,  saying  : 
*' A  State,  like  a  merchant,  makes  a  contract;  a  dishonest 
State,  like  a  dishonest  merchant,  wilfully  refuses  to  dis- 
charge it ;  the  latter  is  amenable  to  a  court  of  justice. 
Upon  general  principles  of  right,  shall  the  former,  when 
summoned  to  answer  the  fair  demands  of  its  creditor,  be 
permitted,  Proteus-like,  to  assume  a  new  appearance,  and  to 
insult  him  and  justice  by  declaring,  '  I  am  a  sovereign 
State  ? '     Surely  not . " 

In  1790,  the  law  professorship  was  established  in  the  Col- 
lege of  Philadelphia,  and  Judge  Wilson  was  made  the  first 
professor.  In  April,  1792,  the  Legislature  fused  that  col- 
lege in  the  University  of  Pennsylvania.  Able,  sensitive,  and 
tenacious  as  he  was,  if  that  act  had  violated  the  Constitution 
which  he  was  sworn  to  support,  he  certainly  would  have 
discovered  it,  and  the  world  would  have  known  the  fact. 

"  A  contract  is  a  species  of  agreement,  the  accord  of  two 
wills,  conventio  pactum;  and  in  an  agreement  there  is,  first 
of  all,  the  pollicitatio ,  the  offer  made  by  one  party,  and  then 
the  acceptance  by  the  other.  When  this  accord  of  wills  is 
such  that  the  law  adds  a  third  element,  the  vinculum  juris, 
or  obligation,  we  have  a  contract."  (Sandars'  Justin.,  by 
Hammond,  399.) 

Mr.  Austin,  notwithstanding  his  faults,  had  a  clear  knowl- 


22()  DARTMOUTH  COLLEGE  CAUSES. 

edge  of  the  civil  law.  He  says:  "In  the  proper  sense  of 
the  word,  a  contract  is  a  promise,  and  begets  only  jus  ad 
rem  against  the  promisor,  —  i.e.,  a  right  to  an  act,  an  endur- 
ance, or  a  forbearance  on  his  j^art."  (2  Austin  Jur.  239.) 
"  Obligation  regards  the  future.  An  obligation  to  a  past 
act,  or  an  obligation  to  a  past  forbearance,  is  a  contradiction 
in  terms."  (1  Austin  Jur.  458.)  "In  the  language  of 
the  Roman  law,  '  contraet '  denoted,  originally,  a  convention 
which  may  he  enforced  by  action.  *  *  *  in  the  lan- 
guage of  the  English  law,  '  contract '  is  a  term  of  uncertain 
extension.  Used  loosely,  it  is  equivalent  to  ^convention' 
or  '  agreement.'  Taken  in  the  largest  signification  which 
can  be  given  to  it  correctly,  it  denotes  a  convention  or 
agreement  which  the  courts  of  justice  will  enforce.  That 
is  to  say,  it  bears  the  meaning  which  was  attached  to  it 
originally  by  the  Roman  jurisconsults."  (2  Austin  Jur. 
1015-16.)  "  The  confusion  of  contract  and  conveyance  by 
elliptical  or  improper  expression  is  one  of  the  greatest 
obstacles  in  the  way  of  the  student."  (2  Austin  Jur. 
1006.)  "  I  shall  distinguish  contracts,  properly  so  called, 
from  certain  facts  or  events  which  are  styled  contracts, 
but  which  virtually  are  alienations  or  conveyances."  (1 
Austin  Jur.  56.)  "Rights  in  rem  sometimes  arise  from 
an  instrument  which  is  called  a  contract,  and  are  there- 
fore said  to  arise  from  a  contract ;  the  instrument  in  these 
cases  wears  a  double  aspect,  or  has  a  twofold  efiect :  to 
one  purpose  it  gives  jiis  in  personam,  and  is  a  contract ;  to 
another  purpose  it  gives  jiis  in  rem,  and  is  a  conveyance. 
When  a  so-called  contract  passes  an  estate,  or,  in  the 
language  of  the  modern  civilians,  a  right  in  rem,  to  the 
obligor,  it  is  to  that  extent  not  a  contract,  but  a  conveyance , 
although  it  may  be  a  contract  to  some  other  extent,  and 
considered  from  some  other  aspect.  A  contract  is  not  dis- 
tinguished from  a  conveyance  by  the  mere  consent  of  parties, 
for  that  consent  is  evidently  necessary  in  a  conveyance  as 
Avcll  as  in  a  contract."      (1  Austin  Jur.  387.) 


AUSTIN MEANING    OF    THE    CLAUSE.  227 

*' We  must  see  likewise  whence  an  action  arises,  and  it  is 
to  be  known  that  it  arises  from  preceding  obligations,  like 
a  daughter  from  a  mother.  But  an  obligation,  which  is  the 
mother  of  an  action,  derives  its  origin  and  commencement 
from  some  preceding  cause,  either  from  a  contract  or  a 
quasi  contract,  or  a  tort  or  a  quasi  tort.  *  *  *  ^^id 
it  must  be  known,  in  the  first  place,  that  an  obligation  is  a 
bond  of  law,  by  which  we  are  constrained  by  a  necessity  to 
give  or  to  do  something,  as  if  one  was  tied  and  constrained 
to  another  person  for  a  certain  thing,  and  that  other  person 
was  bound  to  him  on  the  contrary  for  another  thing.  For 
an  obligation  is,  as  it  were,  a  counter  tie,  and  it  has  four 
forms  under  which  it  is  contracted,  and  several  vestments." 
(2  Bracton,  by  Twiss,  107-9.) 

An  interpretation  which  would  restrict  the  provision  to 
executory  contracts  would  be  much  more  natural  and  rea- 
sonable than  the  other. 

It  seems  to  us  from  the  debates  in  the  Convention,  the 
views  of  Judge  Wilson,  and  those  of  other  eminent  authori- 
ties to  which  we  have  referred,  that  the  framers  of  the  Con- 
stitution had  this  meaning  in  mind  when  they  adopted  the 
provision. 

When  Trustees  v.  Woodward,  was  decided,  no  member  of 
the  Federal  Convention  remained  upon  the  bench,  nor  any 
one  specially  familiar  with  its  history.  Neither  its  journal 
nor  the  Madison  Papers  had  been  published. 

It  is  apparent  that  the  court  regarded  these  as  common 
words,  and  gave  them  the  popular  interpretation,  when  thev 
might  as  well  have  construed  the  preceding  words,  "  bill  of 
attainder,"  "  ex  post  facto,'''  etc.,  as  popular  terms. 

In  Sturges  v.  Crowninshield,  4  Wheat.  197,  which  was 
under  consideration  at  the  same  time  with  the  College 
causes.  Judge  Marshall  said:  "  In  discussing  the  question 
whether  a  State  is  prohibited  from  passing  such  a  law  as 
this,  our  first  inquiry  is  into  the  meaning  of  words  in  common 
use.  What  is  the  obligation  of  a  contract?  and  what  will 
impair  it  ? 


228  DARTMOUTH  COLLEGE  CAUSES. 

' '  It  would  seem  difficult  to  substitute  words  which  are 
more  intelligible,  or  less  liable  to  misconstruction,  than  those 
which  are  to  be  explained.  *  *  *  The  words  of  the 
Constitution,  then,  are  express,  and  incapable  of  being  mis- 
understood."''    The  italics  are  ours. 

Such  recklessness  in  assertion  carries  with  it  its  own 
comment ;  and  if  it  did  not,  the  opinions  of  Livingston  and 
Johnson,  the  views  of  all  candid  commentators,  the  wide 
differences  in  opinion  in  State  and  Federal  courts,  and  the 
innumerable  questions  raised,  most  certainly  would  do  so. 


CHAPTER    IX. 

HOLMES,  WIRT,  HOPKENSON,  WEBSTER— TKEIR  ARGUMENTS 
—  JUDGES  DIVIDED  IN  OPINION— PINKNEY  AND  THE  RE- 
ARGUMENT. 

We  have  seen  that  Trustees  v.  Woodward  was  argued  March 
10,  11,  and  12,  1818,  by  Webster,  and  Joseph  Hopkin- 
son  of  Philadelphia,  for  the  old  trustees,  and  by  Holmes, 
and  Wirt  of  Virginia,  for  the  State.  Webster  made  the 
opening  argument  for  the  plaintiifs,  and  Holmes  for  the  de- 
fendant. Webster  was  the  leading  counsel  on  one  side,  and 
Holmes  assumed  to  be  on  the  other.  Holmes  pitted  him- 
self against  Webster,  and  Hopkinson  was  pitted  against 
Wirt.  Webster  spoke  nearly  five,  and  Holmes  over  three 
hours. 

John  Holmes  was  a  famous  kaleidoscopic  politician,  and 
a  power  in  the  land  in  his  day.  He  was  forty-five  years  old 
when  he  attempted  to  reply  to  Webster.  He  was  born  in 
Massachusetts,  in  1773,  graduated  at  Brown  University 
in  1796,  with  Tristam  Burgess,  Dr.  Shurtlefi",  and  other 
celebrities.  He  came  to  the  bar  in  1799,  and  in  September 
of  that  year  went  into  practice  at  Alfred,  in  the  toA^^l  of 
Sanford,  in  the  county  of  York,  in  that  part  of  Massachu- 
setts then  known  as  the  district  and  now  as  the  State  of 
Maine,  and  which  was  admitted  into  the  Union  two  years 
after  the  argument  in  this  case. 

Massachusetts  proper,  with  an  area  of  some  7,800  square 
miles,  was  separated  from  the  district  of  Maine,  which 
comprised  some  32,000  square  miles,  or  about  one-half  the 
area  of  all  the  New  England  States,  by  the  south-easterly 
point  of  New  Hampshire.  The  York  congi'essional  dis- 
trict,—  often  termed  Cjni'us  King's  district, — bounded  on 

(220) 


230  DARTMOUTH  COLLEGE  CAUSES. 

the  west  by  New  Hampshire,  was  represented  from  1813  to 
1817  by  Cyrus  King,  a  Federalist  lawyer  of  note.  Holmes 
took  to  politics  as  naturally  as  ducks  to  water.  He  was 
then  a  rank  Federalist,  representing  that  party  in  the  Mas- 
sachusetts Legislature  in  1802-3,  and  lampooned  his  oppo- 
nents with  great  virulence. 

The  Federalists  had  a  strong  majority  in  Massachusetts 
})roper  ;  but  Holmes's  own  town,  county,  and  the  district  of 
Maine  being  the  other  way,  late  in  1811  he  suddenly  went 
over  to  the  enemy,  and  became  a  red-hot  advocate  of  the 
national  government  and  its  war  measures,  was  elected  to 
the  House  and  Senate  by  his  new  friends,  and  served  during 
the  war.  In  1815  he  was  appointed  commissioner  by 
Madison,  under  Art.  IV.  of  the  Treaty  of  Ghent.  He  was 
one  of  the  leading  advocates  of  the  separation  of  Maine 
from  the  old  Commonwealth,  which  eventually  became  a 
party  question.  In  June,  1816,  the  Legislature  of  Massa- 
chusetts submitted  the  question  of  separation  to  the  people, 
with  the  proviso  that  if,  upon  the  vote  of  September,  1816, 
"  it  shall  appear  that  a  majority  of  five  to  four,  at  least,  of 
the  votes  so  returned  are  in  favor  of  separation,  the  Con- 
vention is  to  proceed  in  forming  a  Constitution,  and  not 
otherwise."  The  Convention  was  defeated  ;  but  Holmes,  as 
chairman  of  the  committee  to  examine  the  vote,  etc.,  reported 
that  it  was  carried,  and  that  the  Convention  should  proceed 
in  forming  a  Constitution,  which  they  did.  This  result  was 
reached  by  an  ingenious  system  of  political  arithmetic, 
which  would  have  put  to  the  blush  the  quota  mathematics 
of  that  astute  and  fertile  genius,  Provost-Marshal-General 
Fry.  To  get  their  basis,  the  committee  first  rejected  173 
majority  against  separation,  upon  the  ground  of  alleged 
technical  informalities,  and  then  reported  that  22,316 
votes  were  cast ;  that  there  were  11,969  yeas,  and  10,347 
nays  ;  that  the  whole  aggregate  majorities  of  yeas  in  toAvns 
and  plantations  were  6,031,  and  the  whole  aggregate 
majorities  of  nays,  4,409  ;    that,  on  this  construction  of  the 


HOLMES HIS    POLITICAL    MATHEMATICS.  231 

act,  there  was  a  majority  of  five  to  four,  at  least,  in  favor 
of  said  district's  becoming  an  independent  State.  The 
Legislature  of  Massachusetts  overruled  this  construction, 
and  disregarded  the  Constitution  adopted  by  the  Brunswick 
Convention ;  but  a  Convention  was  carried,  and  a  Consti- 
tution was  adopted  in  1819.  Holmes  w^as  the  chairman  of 
the  committee  that  framed  this  Constitution.  He  was 
elected  to  Congress  from  Cyrus  King's  district  (King  died 
in  April,  1817),  in  1816  w\as  reelected,  and  was  in  the 
United  States  Senate  from  1820  to  1833. 

Holmes  was  not  without  talent.  He  had  unbounded 
confidence  in  himself,  and  was  ahvays  cool  and  perfectly 
self-possessed  ;  he  was  a  scheming,  busy,  restless,  rollick- 
ing politician ;  his  broad  wit,  sluice-word  declamation, 
and  stinging  repartee,  with  which  he  more  than  once 
silenced  John  Randolph  and  others  scarcely  less  noted,  were 
the  delight  of  the  crowds  which  gathered  at, the  hustings 
and  County  Courts  ;  and  his  questionable  stories  kept  every 
country  bar-room  in  a  roar.  But  he  was  as  much  out  of 
place  before  Judge  Marshall's  court,  and  pitted  against  such 
a  man  as  Webster,  as  it  was  possible  to  be.  Caring  for  little 
else,  climbing  like  a  busy  "sweep"  with  devious  steps  the 
dirty  chimney  of  political  preferment,  he  had  neither  taste, 
time,  inclination,  nor  the  mental  qualities  required  to  grasp, 
prepare,  and  argue  a  cause  like  this.  The  noisy  eulogist  and 
reputed ^jro/e'^e  of  Jefferson,  he  represented  in  politics,  law, 
and  statesmanship  every  thing  that  the  soul  of  Marshall 
loathed. 

Webster  never  made  the  mistake  of  many  so-called  great 
men, — he  never  underrated  the  power  of  an  opponent. 
When  he  gave  credit,  he  never  erred  except  upon  the  side  of 
generosity. 

In  his  letter  to  Brown,  dated  at  Washington,  March  11, 
1818,  he  says:  "Our  case  came  on  yesterday.  I  opened 
the  argument,  and  occupied  almost  the  whole  of  the  sitting 
in  stating  the  burden  of  our  complaints.     Mr.  Holmes  fol- 


232  DARTMOUTH  COLLEGE  CAUSES. 

lowed  &  stated  the  following  as  his  propositions.  1.  This 
court  has  no  jurisdiction  because  the  parties  do  not  live  in 
different  States  (we  never  put  the  jurisdiction  on  that 
ground).  2.  That  the  grant  of  1769  was  not  a  contract, 
but  the  trustees  merely  officers  of  government  under  the 
king.  3.  That  all  corporations  created  by  the  king  were 
dissolved  by  the  Revolution.  4.  That  if  the  charter  were 
a  contract,  the  acts  do  not  impair  it.  We  have  heard  him 
on  his  three  first  heads.  He  is  to  take  up  the  fourth  this 
morning.  Thus  far  there  has  nothing  new  or  formidable 
developed.     (All  stuff.) 

"Mr.  Wirt  is  to  follow  Mr.  Holmes.  He  is  a  man  of 
talents,  and  will  no  doul)t  make  the  best  of  his  case. 

"  Mr.  Hopkinson  is  to  reply,  and  will  make  up  for  all  my 
deficiencies,  which  were  numerous." 

In  his  letter  of  March  13,  1818,  to  Mason,  he  says  :  "  The 
argument  in  the  College  case  terminated  yesterday,  having 
occupied  nearly  three  days.  On  being  inquired  of  by  de- 
fendant' s  counsel  whether  the  court  would  probably  give  a 
decision  at  this  term,  the  chief  justice  answered,  *  that  the 
court  would  not  treat  lightly  an  act  of  the  Legislature  of  a 
State  and  the  decision  of  a  State  court,  and  that  the  court 
would  not  probably  render  any  judgment  at  this  term.' 
The  cause  Avas  opened  on  our  side  by  me.  Mr.  Holmes 
followed.  His  propositions,  as  near  as  I  recollect,  were, 
1.  No  jurisdiction  because  both  parties  in  same  State.  2. 
Charter  of  1769  not  a  contract;  trustees,  public  officers, 
like  judges,  and  sheriffs  &c.  ;  College  a  part  of  government, 
&c.  3.  All  corporations  abolished  by  Revolution.  4.  If 
charter  a  contract,  not  impaired,  a  great  kindness  to  old 
trustees  to  send  them  new  assistants  &c.  Upon  the  whole, 
he  gave  us  three  hours  of  the  merest  stuff  that  was  ever 
uttered  in  a  county  court.  Judge  Bell  [one  of  the  judges 
who  had  decided  this  cause  in  the  State  court,  and  for  whom 
Webster  was  counsel  in  Bullard  v.  Bell,  then  pending  before 
the   Federal    Supreme    Court]  was  present,  and   had   the 


HOLMES ESTIMATE    BY   WEBSTER    AND    DAGGETT.      233 

pleasure  of  hearing  him,  but  could  not  stay  out  his  speech." 
(1  Webster's  Priv.  Cor.  275.) 

In  his  letter  to  Judge  Smith,  written  the  next  day,  Webster 
says  :  "  My  talk  occupied  nearly  a  whole  sitting.  Holmes 
followed';  he  spoke  three  or  four  hours.  *  *  *  Holmes 
did  not  make  a  figure.  I  had  a  malicious  joy  in  seeing 
Bell  [the  New  Hampshire  judge]  sit  by  to  hear  him,  while 
everybody  was  grinning  at  the  folly  he  uttered.  Bell  could 
not  stand  it.  He  seized  his  hat  and  went  off.'"'  ( 1  Webster's 
Priv.  Cor.  277.) 

Judge  Daggett,  a  member  of  the  United  States  Senate 
from  Connecticut,  then  fift3'"-four  years  of  age,  one  of  the 
foremost  lawyers  of  his  day,  afterwards  chief  justice  of  the 
Supreme  Court  of  that  State,  and  one  of  the  greatest  jurists 
that  ever  honored  that  position,  in  his  letter  of  March  18, 
1818,  to  Mason,  says:  "Tom  Paine,  speaking,  or  rather 
writing  of  some  one,  says  :  ♦  He  went  up  like  a  rocket,  and 
came  down  like  a  stick.'  That  is  evidently  true  of  a  certain 
great  man  from  Cyrus  King's  district.  He  has  attempted 
as  a  politician  so  much  wisdom,  and  such  a  desire  to  be  ad- 
mu'ed  by  everybody ,  that  he  has  ceased  for  weeks  to  be 
regarded  by  anybody.  His  friends,  however,  still  uphold 
him  as  a  lawyer,  but  in  the  Dartmouth  College  Cause,  he 
sunk  lower  at  the  bar  than  he  had  in  the  hall  of  legis- 
lature. The  opinion  was  entirely  universal  that  Webster 
rose  superior  even  to  Wirt  (though  it  is  said  that  he  ap- 
peared very  well),  and  infinitely  so  to  Holmes."  (Mason's 
Mem.  199.) 

Webster's  correspondence  shows  that  he  was  promptly 
advised  of  Pinkney's  connection  with  these  causes,  and  the 
general  ground  to  be  taken  by  him  in  argument. 

Hopkinson,in  his  letter  to  Webster,  of  November  17, 
1818,  says,  referring  to  a  conversation  with  Pinkney  about 
this  cause:  "He  says,  'Mr.  Wirt  was  not  strong  enough 
for  it,  has  not  back  enough.'  There  is  a  wonderful  degree 
of  harmony  among  our  opponents  in  this  case.     You  may 


234  DARTMOUTH  COLLEGE  CAUSES. 

remember  how  Wirt  and  Holmes  thought  and  spoke  of  each 
other."  (Mason's  Mem.  289.)  It  hardly  needed  this  letter 
to  show  the  light  in  which  Wirt  regarded  Holmes.  If 
further  comment  were  necessary  upon  a  performance  that 
could  drive  a  gi"ave  and  patient  judge  like  Bell  out  of  the 
court-room  in  disgust,  it  might  be  found  in  some  of  the 
legal  positions  taken  by  Holmes. 

Wirt  was  a  different  man.  He  was  a  year  the  senior  of 
Holmes  ;  possessed  an  ardent,  social  nature,  and  a  vivid  im- 
agination ;  had  genius  and  culture  ;  was  an  able  lawyer  and 
a  brilliant  advocate  of  the  red-baize  school  which  went  out 
of  vogue  after  the  advent  of  Webster :  but  he  was  placed 
second  to  Holmes,  and  could  not  fail  to  appreciate  the  fact ; 
was  crowded  with  business,  unfamiliar  with  the  local  law  and 
the  history  and  details  of  the  case,  inadequately  prepared, 
and  had  a  great  aversion  to  New  England  men  and  matters. 

He  had  a  large  practice  ;  was  nominated  for  attorney- 
general  of  the  United  States  on  November  13,  1817,  and 
was  confirmed  on  December  15,  1817.  He  purchased  an 
establishment  at  Washington,  removed  there  and  assumed 
the  duties  of  his  office  in  January,  1818,  and  was  pushed  for 
weeks  to  the  very  verge  of  endurance  in  attempting  to  give 
proper  attention  to  his  practice,  and  trying  to  bring  order 
out  of  the  chaos  which  he  found  in  his  new  office. 

In  his  letter  of  January  21,  1818,  to  Judge  Carr,  he  says  : 
"It  is  late  at  night  —  the  fag-end  of  a  hard  day's  work. 
My  eyes,  hand  and  mind  all  tired.  *  *  *  Xhe  office, 
I  find,  is  no  sinecure.  I  have  been  up  till  midnight,  at 
Avork,  every  night,  and  still  have  my  hands  full.  *  *  * 
I  have  much  to  say  to  you  about  this  place,  and  those  who 
are  around  me  ;  but  I  am  now  worn  out.  We  must  defer  all 
this  till  we  meet,  for  I  am  extremely  fatigued.  *  *  * 
The  Supreme  Court  is  approaching.  It  will  half  kill  you 
to  hear  that  it  will  find  me  unprepared ;  but  I  shall  con- 
trive ways  and  means  to  keep  my  professional  head,  at  least, 
above  water.     As  to  any  great  figure,  I  cannot  promise  it,  in 


WIRT HIS    ARGUMENT.  235 

the  bustle  in  which  I  am  now  engaged."  (2  Kennedy's 
Mem.  Wirt,  67,  68.) 

In  his  letter  of  May  6,  1818,  to  Carr,  he  says :  "I  am, 
at  this  present,  in  a  furious  hurry.  *  *  *  Judge  of  the 
pressure  on  me  when  I  tell  you  that  I  had,  this  morning, 
to  rise  before  five  o'clock  to  business,  and  shall  have  so  to 
do,  I  expect,  till  the  meeting  of  the  Supreme  Court."  (2 
Kennedy's  Mem.  Wirt,  69.) 

Webster,  in  his  letter  to  Mason,  of  March  13,  1818,  says  : 
"  Wirt  followed.  He  is  a  good  deal  of  a  lawyer,  and  has 
very  quick  perceptions  and  handsome  power  of  argument, 
but  he  seemed  to  treat  this  case  as  if  his  side  could  furnish 
nothing  but  declamation.  He  undertook  to  make  out  one 
legal  point  on  which  he  rested  his  argument,  namely,  that 
Dr.  Wheelock  was  not  founder.  In  this  he  was,  I  thought, 
completely  unsuccessful.  He  abandoned  his  first  point, 
recited  some  foolish  opinions  of  Virginians  on  the  third. 
*  *  *  He  made  an  apology  for  himself,  that  he  had  not 
had  time  to  study  the  case,  and  had  hardly  thought  of  it  till 
it  ivas  called  on.''     (1  Webster's  Priv.  Cor.  275,  276.) 

In  his  letter  of  March  14,  1818,  to  Judge  Smith,  Webster 
says  :  "  Wirt  has  talents,  is  a  competent  lawyer,  and  argues 
a  good  cause  well.  In  this  case  he  said  more  nonsensical 
things  than  became  him.'^  (1  Webster's  Priv.  Cor.  277.) 
The  italics  are  ours. 

No  man  could  make  a  good  legal  argument  in  such  a 
cause  who  "had  hardly  thought  of  it."  Wirt  was  as 
guileless  as  a  child  when  he  made  this  statement ;  he  simply 
told  the  truth.  The  history  of  the  incident  referred  to  by 
Webster  shows  this.  Wirt  was  arguing  that  Wheelock  was. 
not  the  "  founder,"  etc.  Webster  had  his  attention  called 
to  the  clause  in  the  charter  reciting  that  Wheelock  was  the 
*'  founder,"  etc.  Wirt  had  no  knowledge  that  such  a  clause 
was  in  the  charter,  and  knowing  nothing  of  the  history  of 
Moor's  Charity-School,  was  "  dumbfounded,"  and,  as  Web- 
ster  says,  "abandoned"  the  "point."     Such   a   circum- 


236  DARTMOUTH    COLLEGE    CAUSES. 

stance  could  not  fail  to  leave  its  impress  on  the  minds  of  the 
court,  and  to  it  we  undoubtedly  owe  some  of  the  language 
of  the  opinions. 

Unable,  from  his  situation,  to  give  the  judges  any  thing 
new  in  the  way  of  an  argument,  he  gave  them  a  most  bril- 
liant and  vehement  declamation,  arrayed  in  all  the  gorgeous 
colors  of  the  rainbow.  Wirt  commenced  his  speech  in  the 
afternoon  of  March  11,  1818.  Whether  in  consequence  of 
Webster's  disabling  him  in  the  tilt  about  the  "founder," 
etc.,  or  his  vehemence,  or,  what  is  more  probable,  from 
both,  does  not  distinctly  appear,  but  contemporary  accounts 
show  that  he  utterly  broke  down,  lost  the  control  of  his 
voice,  had  to  apologize  to  the  court  for  his  inability  to  go 
on,  and  asked  their  indulgence  till  the  next  day,  when  he 
concluded.  All  knew  that  Wirt  was  a  favorite  at  Monti- 
cello,  that  he  was  the  right  hand  of  Jefferson  in  Burr's 
trial,  and  had  been  his  private  counsel  for  years. 

Hopkinson  replied  to  him  on  March  12,  1818.  He 
was  forty-eight  years  of  age,  and  an  eminent  lawyer.  He 
was  admitted  to  the  bar  in  1791,  and  was  a  member  of 
Congi'ess  at  the  time  of  the  argument.  Webster,  in  his 
letter  to  Brown,  of  March  13,  1818,  says:  "Mr.  Hop- 
kinson understood  every  part  of  the  cause,  and  in  his 
argument  did  it  great  justice.  No  new  \'iew  was  suggested 
on  the  other  side."  (1  Webster's  Priv.  Cor.  274.)  In  his 
letter  the  same  day  to  Mason,  Webster  says:  "  Mr.  Hop- 
kinson made  a  most  satisfactory  reply,  keeping  to  the  law, 
and  not  following  Holmes  and  Wirt  into  the  fields  of  dec- 
lamation and  fine  speaking."  ( 1  Webster's  Priv.  Cor.  276.) 
In  his  letter  of  March  14,  1818,  to  Judge  Smith,  Webster 
says:  "Hopkinson  in  concluding  confined  himself  strictly 
to  repl3dng,  and  acquitted  himself  with  ability."  (1  Web- 
ster's Priv.  Cor.  277.)  The  most  adverse  critics  conceded 
that  Mr.  Hopkinson  argued  the  cause  "  handsomely." 

And  Webster,  what  can  we  say  of  him  !  In  his  simple 
and  unaffected  intellectual  greatness,  he  towered  as  much 


HOPKiNSOx  —  Webster's  greatness.  237 

above  the  mass  of  mankind  as  Mount  Hood  above  the  smil- 
ing valley  of  the  Willamette,  the  foot-hills,  and  the  snowy 
peaks  which  encircle  it.  He  was  one  of  those  great  men 
who  are,  as  it  were,  the  landmarks  of  ages  ;  he  was  endowed 
with  a  majestic  presence  ;  those  great,  deep,  black  eyes, 
with  their  intense  coal-fire  glow,  which  had  come  down  to 
him  on  the  stream  of  generations  from  Stephen  Bachiler, 
seemed  as  if  they  searched  alike  the  seen  and  the  unseen 
world ;  his  wonderful  voice,  which  has  thrilled  the  very 
marrow  in  our  bones  even  when  the  end  of  the  mighty  old 
man  was  nigh,  was  the  attribute  of  one  born  to  convince 
and  conquer.  All  these  were  makeweights  enough  to  be 
thrown  into  the  scale  on  one  side  ;  but  others  were  added. 
We  have  seen  that  Mason's  argument  occupied  forty-three, 
and  Webster's  forty-six,  pages  in  Farrar's  report.  Both 
were  slow  speakers,  and  uttered  about  the  same  number  of 
words  in  a  given  time.  Mason  spoke  two  hours,  and  Web- 
ster, at  Washington,  nearly  five.  Webster's  memory  was 
such  that  he  could  have  written  out  his  argument  nearly 
verbatim  had  he  chosen.  Something  must  be  allowed  for 
the  peroration  ;  and  something,  perhaps,  for  condensation, 
though  Webster  generally  condensed  his  speeches  by  the 
preparation  and  thought  he  gave  them  before  their  delivery. 
Making  all  due  allowance,  more  than  an  hour  was  devoted 
to  something  yfhxch.,  Mr.  Webster  informs  us,  was  "  left  out." 
Wliat  was  it?  No  report  of  it  exists.^  We  only  know  its 
drift.  In  adroit  but  cultured  phrase  he  pressed  the  whole 
political  aspect  of  the  case  upon  the  attention  of  the  court. 
He  commented  W'ith  warmth  and  severity  upon  the  course 
of  the  State,  and  the  revolution  which  the  "Jacobins  "  had 
wrought  in  its  policy  for  political  purposes  ;  asserted  that 

1  "While  the  particular  institution,  the  fate  of  which  was  at  stake  in  the 
cause,  was  one  which  the  strongest  sympathies  of  his  youth  and  the  fullest 
convictions  of  his  manhood  stimulated  him  to  preserve  from  the  control  of 
party  politics  and  the  mischief  of  political  legislation.  Inspired  by  these 
motives,  he  opened  the  causes,  in  the  argument  of  which  all  that  is  preserved 
is  contained  in  the  fifth  volume  of  this  work ;  a  report  which  gives  us  only  the 
legal  reasoning  of  a  speech  that  was  undoubtedly  as  remarkable  for  its  beauty, 
pathos,  and  eloquence,  as  it  was  for  its  logical  power  and  its  wealth  of  histor- 
ical and  juridical  illustration."     (1  Curtis's  Life  of  Webster,  1G7.) 


238  DARTMOUTH  COLLEGE  CAUSES. 

the  Legislature,  which  was  the  creature  of  this  "  Jacobin  " 
irruption,  had  invaded  the  sacred  rights  of  property  by  the 
passage  of  these  acts,  in  direct  violation  of  the  State  Con- 
stitution and  the  fundamental  principles  of  our  government, 
had  overturned  the  judiciary  of  the  State,  and  created  a 
new  one  to  subserve  its  purposes  ;  and  declared  there  was 
no  protection  unless  afforded  by  the  Federal  tribunals. 

The  followins:  extract  from  Mr.  Webster's  letter  to 
Mason,  dated  June  28,  1818,  shows  how  he  felt  in  relation 
to  the  New  Hampshire  court  and  Legislature:  "I  found 
that  the  College  people  thought  that  you  made  a  very  strong 
impression  in  their  cause.  It  would  be  a  queer  thing  if  Gov. 
P.'s  court  should  refuse  to  execute  his  laws.  I  am  afraid 
there  is  no  great  hope  of  their  disobedience  to  the  powers  that 
made  them."     (Mason  Papers  ;  Harvey's  Webster  Papers.) 

We  have  already  seen  the  real  reason  why  thirty  pages, 
three-fourths  of  his  entire  legal  argument,  in  Farrar's  report 
were  devoted  to  points  not  before  the  court. 

In  his  letter  to  Judge  Smith  of  March  14,  1818,  Webster 
says  :  *'  We  finished  with  the  third  day.  The  next  morn- 
ing, yesterday,  the  chief  justice  told  us  the  court  had  con- 
ferred;  that  there  were  different  opinions,  and  that  some 
judges  had  not  formed  opinions  ;  consequently  the  cause 
must  be  continued."     (1  Webster's  Priv.  Cor.  277.) 

The  account  in  the  JVational  Intelligencer  is  as  follows  :  — 

"  On  Friday  morning,  [March  13,  1818,]  the  chief  justice  ob- 
served that  the  judges  had  conferred  on  the  cause  between  the 
Trustees  of  Dartmouth  College  and  William  H.  Woodward.  Some 
of  the  judges  have  not  come  to  an  opinion  on  the  case.  Those  of 
the  judges  who  have  formed  opinions  do  not  agree.  The  cause 
must  therefore  be  continued  until  the  next  term. ' ' 

There  are  several  accounts  in  private  letters  and  public 
prints,  but  they  are  nearly  all  of  the  same  import. 

In  the  letter  of  Webster  just  quoted,  he  says  :  "I  have 
no  accurate  knowledge  of  the  manner  in  which  the  judges 
;ire  divided.     The  chief  and  Washington,  I  have  no  doubt. 


JUDGES    DISAGREE CAUSE    CONTINUED.  239 

are  with  us.  Duvall  and  Todd  perhaps  against  us  ;  the  other 
three  holding  up.  I  cannot  much  doubt  but  that  Story  will 
be  with  us  in  the  end,  and  I  think  we  have  much  more  than 
an  even  chance  for  one  of  the  others."     The  italics  are  ours. 

The  guarded  language  of  Webster,  the  allusion  to  Judges 
Johnson  and  Livingston,  and  the  implication  in  the  pecu- 
liar reference  to  Judge  Story,  must  be  read  in  the  light 
of  tradition  and  history  to  be  fully  appreciated. 

Story  was  understood  to  be  a  Wheelock  man  before  the 
passage  of  the  act  in  question.  He  was  the  confidant,  and 
apparently  the  adviser,  of  Governor  Plumer,  and  the  friend 
of  Richardson.  As  before  stated.  Governor  Plumer,  at  the 
first  meeting  after  the  passage  of  the  act,  made  Story  and 
his  neighbor  and  confidential  friend  overseers  of  the  Uni- 
versity. 

The  bitterness  felt  towards  him  by  the  old  trustees  and 
their  adherents  crops  out  in  Hopkinson's  letter  to  Marsh, 
hereafter  quoted.  It  has  long  been  an  open  secret  with  a 
few  that  Story's  first  opinion  was  adverse  to  the  old  trus- 
tees. This  gradually  cropped  out  in  lectures,  addresses, 
and  the  like,  and  in  some  of  the  legal  journals  of  our  day. 
We  have  seen  that  the  essential  facts  of  the  case  were  as 
well  understood  by  the  leading  minds  in  New  England  two 
years  before  as  two  years  after  the  decision  ;  and  so  of  the 
general  grounds  taken  by  both  sides.  The  question  was  au 
interesting  and  important  one,  constantly  mooted  in  all 
legal,  religious,  and  political  circles.  The  tradition  is,  that 
Judge  Story,  at  an  early  day,  carefully  examined  the  ques- 
tion with  his  characteristic  zeal  and  indefatigable  research, 
and  arrived  at  the  same  result  reached  by  his  friend  Chief 
Justice  Richardson  ;  that  he  communicated  this  fact  semi- 
confidentially  to  his  friend  Ichabod  Bartlett,  one  of  the 
counsel  for  the  State,  from  Avhom  in  an  impalpable  form,  in 
the  same  way,  it  dripped  into  the  narrow  circle  of  Wheelock 
and  his  special  friends,  —  or,  as  Webster  termed  them,  the 
"  University  people."  The  authorities  for  this  arc  Bartlett, 
Webster,  and  Choate.     Webster,  referring  to  this  fact  and 


240  DARTMOUTH  COLLEGE  CAUSES. 

the  final  decision,  as  the  anecdote  is  related  by  Mr.  Choate, 
said  to  him :  ' '  Bartlett  and  the  University  people  were 
dumbfounded,  thunderstruck,  when  they  found  that  Story 
had  gone  against  them."  It  is  no  discredit  to  Story  that 
he  changed  his  opinion,  but  the  contrary  ;  for  it  is  the  first 
and  last,  the  highest  and  holiest,  duty  of  ever  judge  to  be 
risht :  but  it  should  have  made  him  more  charitable  than  he 
sometimes  seemed  toward  those  who  felt  that  his  first  opinion 
was  the  soundest. 

What  Mr.  Webster  says  of  Bullard  v.  Bell,  etc.,  is  an  illus- 
tration of  the  accuracy  of  his  knowledge  of  the  inner  work- 
ings of  the  Supreme  Court,  and  the  position  of  its  individual 
judges.  In  his  letter  to  Mason,  of  February  15,  1819,  he 
says  :  "In  Mr.  Bell's  case,  Mr.  Pinkney  was  near  two  hours 
in  opening,  and  full  four  in  the  close.  In  that  case  we  have 
no  judgment  yet.  I  think  some  impression  was  made  on 
our  side,  and  I  have  hopes  of  the  issue,  but  know  nothing 
certain."  (Mason's  Mem.  218.)  In  his  letter  to  Mason,  of 
February  23,  1819,  he  says:  "In  Judge  Bell's  case,  the 
event  is  exceedingly  doubtful.  My  belief  is,  there  is  a 
division  on  the  bench.  You  may  take  it  for  true,  at  pres- 
ent, that  Ch.  J.,  L.  and  J.  [Marshall,  Livingston,  and  John- 
son] are  m  favor  of  Bell;  W.,  D.  and  S.,  [Washington, 
Duvall,  and  Story]  contra.  It  is  not  worth  while  to  men- 
tion this,  even  to  Mr.  Bell.  It  is  possible  that  further 
reflection  may  bring  a  majority  to  think  alike,  but  I  am  fear- 
ful it  must  stand  over  and  be  argued  again  before  Todd." 
(Mason's  Mem.  221,  222.)  In  his  letter  to  Mason,  of  Feb- 
ruary 15,  1819,  he  says  :  "  The  question  is  before  the  court, 
whether  the  State  Bankrupt  Laws  [Sturges  v.  Crownin- 
shield,  4-  Wheat.  122]  are  valid.  The  general  opinion  is 
that  the  six  judges  now  here  will  be  equally  divided  on  the 
point.  I  confess,  however,  I  have  a  strong  suspicion  there 
will  be  an  opinion,  and  that  that  opinion  will  be  against  the 
State  laws."  (Mason's  Mem.  219.)  The  result  in  these 
as  well  as  other  causes  which  might  be  named  shows  that 
Webster  knew  whereof  he  spoke.     Indeed,  in  those  days. 


STORY WIRT PINKNEY.  241 

judges  were  uot  so  chary  as  respects  what  transpired  in 
consultation  as  they  have  since  been  reputed  to  be. 

Wirt,  in  his  letter  to  Judge  Carr,  of  March  24,  1817,  says  : 
"  In  relation  to  the  fate  of  the  Washington  cause,  it  is  not 
decided.  The  court  thought  the  cause  with  me  on  the  evi- 
dence, on  which  the  argument  turned;  but  being  an  admi- 
rality  case,  they  have,  according  to  the  practice  of  that 
court,  indulged  the  opposite  party  with  farther  proof.  So 
that  it  is  possible  we  shall  have  another  heat  at  it  next 
winter.  Judge  Johnson,  of  the  Supreme  Court,  told  me 
here  the  other  day  that  my  client  would  certainly  recover 
the  cargo  (which  is  infinitely  the  most  valuable  part  of  the 
subject),  and  as  for  the  ship,  if  our  adversary  did  not  alter 
the  cause  most  materially  by  his  farther  proof  (which  it  was 
not  believed  he  could  do),  we  should  get  that,  too."  (2 
Kennedy's  Mem.  Wirt,  21,  22.) 

We  have  already  seen  that  after  the  arguments  were 
closed,  and  after  he  knew  that  the  judges  were  divided  in 
opinion,  Webster  insisted  on  pressing  the  other  causes 
through  the  Circuit  Court  up  to  the  Supreme  Court. 

From  the  facts  already  shown  may  be  gathered  some  of 
the  reasons  why  the  personal  friends  of  Wheelock,  late  in 
1818,  committed  the  fate  of  these  causes  to  the  great 
Federal  lawyer,  William  Pinkney. 

In  his  letter  of  November  9,  1818,  to  Mi*.  Brown,  Webster 
says  :  "I  received  yours  yesterday.  It  will  not  be  neces- 
sary to  decide  on  the  subject  of  other  counsel  until  I  see 
you.  You  do  uot  appear  to  apprehend  my  reasons  exactl}'-, 
and  I  can  explain  them  better  ore  tenus;  suffice  it  to  say,  at 
present,  that,  although  if  nothing  should  be  necessary  in  the 
way  of  argument  but  a  reply,  Mr.  Hopkinson  or  myself 
might  do  that,  yet  if  it  should  be  necessary  to  go  over  the 
whole  ground  again,  some  new  hand  must  come  into  the 
cause.  My  own  impression  is  to  apply,  in  case  of  need,  to 
some  gentleman  there  on  the  spot.  Let  this  rest  till  Janu- 
ary.    *     *     *     I  am  not  certain  that  a  new  argument  will 

16 


242  DARTMOUTPI  COLLEGE  CAUSES. 

be  ordered,  and  am  still  more  doubtful  whether  a  new  open- 
ing on  our  side  will  be  called  for.  But  this  is  possible,  and 
if  so,  some  gentleman  must  repeat  our  view,  and  add  what 
he  or  we  may  have  obtained  new.  This  event  or  course  of 
things  is  not  probable,  but  possible."  (1  Webster's  Priv. 
Cor.  287,288.) 

In  Mr.  Hopkinson's  letter  to  Webster,  of  November  17, 
1818,  he  says:  "On  my  arrival  here  [Washington]  1 
received  your  letter  of  the  9th  instant,  just  as  I  was  about 
to  write  to  you  on  the  same  subject.  In  my  passage  through 
Baltimore,  I  fell  in  with  Pinkney,  who  told  me  he  was 
engaged  in  the  cause  by  the  present  University,  and  that  he 
is  desirous  to  argue  it,  if  the  court  will  let  him.  *  *  * 
On  recei^dng  this  information  from  Mr.  Pinkney,  I  seriously 
reflected  upon  the  course  it  would  be  proper  for  us  to  take  ; 
and  I  assure  you  most  truly,  I  decided  precisely  in  favor  of 
that  suggested  by  you.  It  cannot  be  expected  we  shall 
repeat  our  argument  merely  to  enable  Mr.  Pinkney  to  make 
a  speech,  or  that  a  cause  shall  be  reargued  because,  after  the 
argument  has  been  concluded,  and  the  court  has  the  case 
under  advisement,  either  party  may  choose  to  employ  new 
counsel.  I  think  if  the  court  consents  to  hear  Mr.  Pinkney, 
it  will  be  a  great  stretch  of  complaisance,  and  that  we  should 
not  give  our  consent  to  any  such  proceeding ;  but  if  Mr. 
Pinkney,  on  his  own  application,  is  permitted  to  speak  we 
should  claim  our  right  of  reply.  The  court  cannot  want  to 
have  our  argument  repeated  ;  and  jthey  will  hardly  require 
us  to  do  it  for  the  accommodation  of  Mr.  Pinkney." 
(1  Webster's  Priv.  Cor.  288,  289.) 

Judge  Story,  in  his  letter  to  the  reporter  (Wheaton),  of 
December  9,  1818,  says  :  "  The  next  term  of  the  Supreme 
Court  will  probably  be  the  most  interesting  ever  known. 
Several  gi"eat  constitutional  questions,  the  constitutionality 
of  the  insolvent  laws,  of  taxing  the  Bank  of  the  United 
States,  and  of  the  Dartmouth  College  new  charter,  will 
probably  be  splendidly  argued.     Mr.  Pinkney  is  engaged 


PINKNEY KEARGUMENT   PEOPOSED.  243 

in  these  and  in  several  otlier  very  important  questions  sent 
from  my  circuit."      (Life  of  Story.) 

Webster,  in  his  letter  to  Mason,  of  December  12,  1818, 
says  :  "I  learn  that  Mr.  Piukney  means  to  put  our  College 
case  on  the  ground  that  all  the  power  of  Parliament  belongs 
to  the  N.  H.  Legislature."  (Mason  Papers;  Harvey's 
Webster  Papers.) 

Moody  Kent,  in  his  letter  to  Farrar,  of  January  31, 
1819,  says  :  "  Upon  my  stating  to  him  [Thomas  W.  Thomp- 
son] that  it  was  important  the  proposals  [for  publishing 
Farrar' s  report]  should  be  opened  immediately  after  the 
decision  was  made  known,  and  that  it  would  prol^ably  be 
made  known  early  in  Feby.,  he  said  that  the  cause  would 
certainly  be  again  argued — that  the  court  would  not  refuse 
to  hear  an  argument —  and  that  the  counsel  recently  engaged, 
if  told  that  the  judges  had  formed  and  drawn  up  their  opinion, 
&  were  ready  to  declare  it,  would  nevertheless  argue  it,  and 
that  the  decision  would  not  be  published  till  the  latter  part 
of  March."      (Farrar  Papers.) 

Webster,  in  his  letter  to  Farrar,  of  February  1,  1819, 
says  :  "  The  court  met  to-day,  present  all  but  Todd.  Judge 
Johnson  is  here,  and  I  suppose  will  sit  this  terra  notwith- 
standing he  is  nominated  collector.  Mr.  Pinkney  will  be  in 
town  to-day,  and  I  suppose  will  move  for  a  new  argument 
in  the  case  vs.  Woodward.  It  is  most  probable,  perhaps,  that 
he  will  succeed  in  that  object,  altho'  I  do  not  think  it  by  any 
means  certain.  Not  a  word  has  as  yet  fallen  from  any  judge 
on  the  cause.  They  keep  their  own  counsel.  All  that  I 
have  seen,  however,  looks  rather  favorable.  I  hope  to  be 
relieved  of  further  anxiety  by  a  decision  for  or  ag't  us,  in 
five  or  six  days.  I'd  not  have  another  such  cause  for  the 
College  plain  and  all  its  appurtenances."     (Farrar  Papers. ) 

In  Webster's  letter  to  Mason,  of  February  4,  1819,  two 
days  after  the  decision,  he  says  :  "  On  the  other  side,  a  sec- 
ond argument,  as  you  know,  was  expected.  Dr.  Perkins 
had  been  a  week  at  Baltimore  conferring  with  Mr.  Pinkney. 


244  DARTMOUTH  COLLEGE  CAUSES. 

Mr.  Pinkney  came  up  on  Monday.  On  Tuesday  morning, 
he  being  in  court,  as  soon  as  tlie  judges  had  taken  their 
seats,  the  chief  justice  said  that  in  vacation  the  judges  had 
formed  opinions  in  the  College  cause.  He  then  immediately 
began  reading  his  opinion,  and,  of  course,  nothing  was  said 
of  a  second  argument."     (Mason's  Mem.  213.) 

Webster,  in  his  letter  to  Farrar,  of  February  9, 1819, 
says  :  "I  shall  endeavor  to  get  the  judg't  entered  as  of  last 
term  in  the  case  of  Mr.  Woodward.  In  the  other  cases  I 
hope  to  get  a  certificate  which  shall  enable  Judge  Story  to 
know  what  to  do  with  them  in  May." 

In  the  following  private  letter  to  Judge  Smith,  of  Feb- 
ruary 28,  1819,  which  lies  before  us  as  we  write,  Webster 
says  :  "  Judgment  is  entered  in  Trustees  v.  Woodward  as  of 
last  Term,  that  the  said  Trustees  do  recover  of  the  said 
Woodward  the  aforesaid  sum  of  twenty  thousand  dollars,  so 
found  and  assessed  as  aforesaid  ;  &  I  have  in  my  bag  a  man- 
date to  the  Superior  Court  of  Judicature  of  the  State  of  New 
Hampshire  to  carry  this  judgment  into  execution.  So  much 
for  that  cause  &  the  second  argument  therein  expected. 

"As  to  the  other  causes,  Messrs.  Pinkney  &  Wirt  have 
been  very  much  pressed  by  the  Agents  and  partizans  here 
to  argue  one  of  these  causes  upon  the  ground  of  the  new 
facts.  By  the  time,  however,  that  we  approached  near  the 
causes  they  saw  difficulties,  and  their  zeal  began  to  cool.  It 
was  impossible  to  agree  on  definite  facts.  It  was  hardly 
possible  to  expect  any  different  result  than  had  already 
taken  place  from  another  argument  without  new  facts. 
Some  of  the  opinions  of  the  judges  appeared  to  go  so  far  as 
to  be  decisive  against  them,  even  taking  the  new  facts  for 
granted.  At  the  same  time  we  heard  here  the  echoes  of  the 
clamor  in  N.  H,  that  the  cause  had  not  been  heard  on  its 
true  facts.  I  called  up  the  subject  a  day  or  two  before  we 
should  have  reached  the  causes,  &  desired  to  know,  from 
the  Counsel,  whether  it  was  expected  to  argue  one  of  those 
causes.     This  brousht  on  a  conversation  between  Bench  & 


TROUBLES    BETWEEN    PINKNEY    AND    AVIRT.  245 

Bar,  which  finally  terminated  in  this  :  that  tlie  causes  should 
be  remanded  by  consent ;  that  Defts.  might,  in  Circuit 
Court,  move  to  set  aside  this  Verdict,  if  they  should  be  so 
advised,  when  the  opinions  of  the  judges  in  Woodward's 
case  should  be  read  &  known — I  found  this  course  would 
he  agreeable,  &  adopted  it  at  once.  In  truth  I  did  not  want 
a  second  argument  here  upon  an  assumption  of  facts.  If  I 
do  not  misjudge,  we  shall  have  no  difficulty  in  the  Circuit 
Court.  We  shall  not,  I  trust,  be  called  on  to  agree  on  any 
more  Special  Verdicts.  If  the  Defts.  do  not  acquiesce  in 
any  opinion  of  the  judge,  they  must  take  their  course  by  bill 
of  exceptions. 

"We  are  not  yet  thro,  the  Bank  Question.  Martin  has 
been  talking  3  ds — Pinkney  replies  to-morrow,  &  that 
finishes.     I  set  out  for  home  next  day." 

We  have  followed  the  italics  of  Webster. 

Misfortunes  never  come  singly.  It  never  rains  but  it 
pours.  As  fate  would  have  it,  for  nearly  a  year  before  the 
causes  were  sent  back  to  the  Circuit  Court,  Pinkney  and 
Wirt  had  been  on  bad  terms.  Pinkney  had  no  rival,  as  he 
regarded  it,  at  the  bar  of  the  Supreme  Court  before  Web- 
ster appeared  in  the  College  cause  ;  and  he  spared  no  one 
who  assumed  to  be  a  rival.  Oil  and  water  would  mix  as 
soon  as  they,  for  they  agreed  in  but  one  thing,  and  that  was 
in  their  estimate  of  Holmes.  Early  in  1818,  difiiculties 
arose  between  the  two  in  a  trial  which  took  place  in  Balti- 
more. A  hostile  meeting  was  only  prevented  by  great 
exertion.  Judge  Story,  in  his  letter  to  Wheaton  of  Decem- 
ber 9,  1818,  from  which  we  have  quoted,  says  in  relation  to 
this  matter  :  "I  am  quite  persuaded,  without  having  heard 
a  word  of  the  facts,  that  our  friend  Mr.  Pinkney  is  wrong 
in  the  recent  disagreement  with  Mr.  Wirt.  The  latter  is  a 
most  worthy,  good-humored,  spirited  gentleman,  of  eminent 
talents  and  fine  accomplishments.  Mr.  Pinkney  should  not 
undervalue  him,  nor  seek  to  obtain  a  temporary  glory  by 
robbing   him    of  a    single   laurel.     *      *     *      j   have   the 


246  DARTMOUTH  COLLEGE  CAUSES. 

highest  opinion  of  Mi*.  Pinkney,  who  is  truly  princeps  inter 
principes.  We  must  talk  with  him  on  this  subject,  and 
make  him  feel  he  has  much  to  lose,  and  nothing  to  gain,  by 
the  course  he  sometimes  pursues.  He  need  not  fear  enter- 
ing into  competition  with  any  advocate.  All  acknowledge 
his  talents  and  his  learning." 

Such  a  state  of  things,  to  say  the  least,  was  not  eminently 
favorable  for  a  cordial  cooperation  between  them.  Pinkney 
was  a  great  favorite  with  the  judges,  and  no  man  stood 
higher  with  the  court  than  he  did ;  but  it  is  evident  they 
did  not  intend  to  hear  him  in  these  causes.  If  they  had, 
they  would  not  have  forestalled  his  motion  for  a  reargument 
by  announcing  the  judgment  with  a  single  opinion  when 
nobody  expected  it ;  or  have  ordered  a  judgment  7iunc  pro 
tunc  against  the  dead,  when  it  was  apparent,  from  the 
grounds  upon  which  he  resisted  the  motion,  that  the  practi- 
cal effect  would  be  to  drive  him  out  of  court  in  the  other 
causes.  The  reason  for  this  course  is  probably  to  be  found 
in  Story's  letter  to  Mason,  of  October  6,  1819,  —  in  which 
he  says  :  "I  am  exceedingly  pleased  with  your  argument 
in  the  Dartmouth  College  case.  I  always  had  a  desire  that 
the  question  should  be  put  upon  the  broad  basis  3'ou  have 
stated  ;  and  it  was  matter  of  regret  that  we  were  so  stinted 
in  jurisdiction  in  the  Supreme  Court,  that  half  the  argument 
could  not  be  met  and  enforced.  You  need  not  fear  a  com- 
parison of  your  argument  with  any  in  our  annals,"  —  and 
in  his  opinion  in  Charles  River  Bridge  v.  Warren  Bridge,  11 
Pet.  584-644,  which  undoubtedly  represented  correctly, 
upon  these  points,  the  views  of  the  majority  of  the  judges 
who  sat  in  the  College  case.  See  also  Webster's  letter  to 
Mason,  of  April  13,  1819.     (Mason's  Mem.  223.) 

We  do  not  know  what  Pinkney  might  have  done  had  these 
causes  been  seasonably  committed  to  his  keeping.  We  do 
know  that,  notwithstanding  his  foibles,  he  was  a  great 
man,  —  an  accomplished  diplomatist,  a  great  statesman,  a 
consummate  orator  and  profound  jurist,  and  one    of  the 


PINKNEY STORY   AND    WIRT's    ESTIMATE.  247 

purest  patriots  that  ever  breathed.  He  was  a  decided  Fed- 
eralist, but  that  never  discolored  his  judgment  of  men, 
measures,  or  parties,  or  obscured  his  sense  of  duty  to  his 
country.  He  was  about  fifty-four  years  old  when  he  at- 
tempted to  reargue  this  cause.  He  came  to  the  bar  when 
twenty-two,  and  was  sent  to  the  Convention  which  ratified 
the  Federal  Constitution  when  twenty-eight.  He  ran  th* 
gauntlet  of  the  State  offices,  in  the  House,  Senate,  and 
Council;  and  in  1796,  Washington  sent  him  to  London  as 
commissioner  under  the  Jay  treaty,  where  he  remained  for 
nearly  eight  years.  In  1804,  Maryland  made  him  her 
attorney-general;  from  1806  to  1811,  he  was  minister  to 
England,  when  Madison  appointed  him  attorney-general  of 
the  United  States,  which  office  he  resigned  in  about  two 
years  ;  in  1815,  he  was  a  member  of  Congress  ;  from  1816 
to  1818,  he  was  minister  to  Russia  and  special  minister  to 
Naples  ;  in  1819,  he  was  elected  to  the  United  States  Sen- 
ate ;  and  died  on  February  22,  1822,  from  over-exertion  in 
his  profession. 

Even  Wirt,  habitually  generous  to  others,  but  never  just 
to  Pinkney,  said,  in  his  letter  to  Gilmer  of  May  9,  1822: 
"Poor  Pinkney!  He  died  opportunely  for  his  fame.  It 
could  not  have  risen  higher.  *  *  *  jj^  ^^s  a  great 
man.  On  a  set  occasion,  the  greatest,  I  think,  at  our  bar. 
I  never  heard  Emmet  nor  Wells,  and  therefore  do  not  sav 
the  American  bar.  He  was  an  excellent  lawyer  ;  had  very 
great  force  of  mind,  great  compass,  nice  discrimination, 
strong  and  accurate  judgment ;  and  for  copiousness  and 
beauty  of  diction,  was  unrivalled.  He  is  a  real  loss  to  the 
bar.  No  man  dared  to  grapple  with  him  without  the  most 
perfect  preparation,  and  the  full  possession  of  all  his 
strength.  Thus  he  kept  the  bar  on  the  alert,  and  every  horse 
with  his  traces  tight."  (2  Kennedy's  Mem.  Wirt.  122.) 
Judge  Story,  in  his  letter  to  Mr.  White,  of  March  3,  1819, 
says  :  "  Mr.  Pinkney  rose  on  Monday  to  conclude  the  argu- 
ment ;  he  spoke  all  that  day  and  yesterday,  and  will  probably 


248  DARTMOUTH  COLLEGE  CAUSES. 

conclude  to-day.  I  never,  in  my  whole  life,  heard  a  greater 
speech  ;  it  was  worth  a  journey  from  Salem  to  hear  it ;  his 
elocution  was  excessively  vehement,  but  his  eloquence  was 
overwhelming.  His  language,  his  style,  his  figures,  his 
arguments,  were  most  brilliant  and  sparkling.  He  spoke 
like  a  great  statesm.an  and  patriot,  and  a  sound  constitutional 
lawyer.  All  the  cobwebs  of  sophistry  and  metaphysics 
about  State  rights  and  State  sovereignty  he  brushed  away 
with  a  mighty  besom.  *  *  *  j  fgaj.  -tj^at  this  speech 
will  never  be  before  the  public,  but  if  it  should  be,  it  will 
attract  universal  admiration.  Mr.  Pinkney  possesses, 
beyond  any  man  I  ever  saw,  the  power  of  elegant  and  illus- 
trative amplification."    (Life  of  Story.) 

The  most  diligent  search  fails  to  discover  any  trace  of  the 
great  argument  prepared  by  Pinkney  in  the  College  causes. 


CHAPTER   X. 

THE  CAUSE  IN  1818  — DEATH  OF  JUDGE  WOODWARD  — CORKE- 
SPONDENCE  BETWEEN  PARKER,  WEBSTER,  MARSH,  KENT, 
BROWN,  AND  OTHERS  — THE  ALBANY  CONFERENCES  — CON- 
STITUTION OF  NEW  YORK  — DECISION  OF  COUNCIL  OF 
REVISION  — JUDGES  JOHNSON,  LIVINGSTON,  STORY,  AND 
GOVERNOR  CLINTON  — ADAMS  v.  STOREY  — COL.  HAINES  — 
THE  REEDSBORO'  LETTER  — LETTER  FROM  HOPKINSON  TO 
MARSH. 

Weeks  before  Pinkney  came  into  the  cases,  the  machinery 
had  been  devised  and  put  in  motion  which  was  to  render  all 
efforts  on  his  part  unavailing. 

Mr.  Webster  had  no  occasion  to  trouble  himself  about  the 
position  of  Marshall  and  Washington,  for  they  were  with 
him ;  and  quite  as  little  about  that  of  Duvall  and  Todd,  for 
they  were  the  other  way.  The  objective  point  was  to  con- 
trol the  action  of  two  of  the  remaining  three.  Mr.  Webster 
knew  Story's  own  case,  Fletcher  v.  Peck,  and  that  the 
opinion  of  Mr.  Justice  Johnson  in  that  case,  prepared  after 
the  most  elaborate  arguments  and  careful  consideration,  was 
decisive  against  him  in  Trustees  v.  Woodward,  whatever  the 
judge's  position  might  be  with  reference  to  the  other  causes. 
He  knew  Story's  position  and  antecedents  as  well. 

A  full  history  of  the  movements  to  which  we  have  referred 
can  never  be  written.  A  portion  of  the  materials  are  for- 
ever lost. 

Some  have  gone  to  the  paper-mill,  like  many  of  Thomp- 
son's letters ;  others,  for  obvious  reasons,  have  been  with- 
held from  the  public  eye  by  those  who  have  or  had  them  in 
charge.  Before  us,  as  we  write,  lies  the  written  statement  of 
one  of  the  great  actors  in  this  controversy,  showing  that  on 

(249) 


250  DARTMOUTH  COLLEGE  CAUSES. 

February  28,  1824,  he  "  destroyed  "  "  many  letters  to  and 
from  F.  Brown  &  D.  Webster,  &  letters  to  &  from  J. 
Mason,  T.  Farrar,  M.  Olcott,  B.  J.  Gilbert,  T.  W.  Thomp- 
son, C.  Marsh,  A.  Livermore,  R.  Fletcher,"  etc.,  relatmg 
to  this  controversy. 

But  enough  remains  to  show  what  was  done,  though  it 
does  not  disclose  every  step  of  the  actors. 

The  fortunes  of  the  old  trustees  were  at  their  lowest  ebb 
in  July,  1818.  At  about  that  time  Chancellor  Kent  visited 
Windsor,  as  before  stated.  The  influence  of  Dunham,  Jacob, 
Hubbard,  and  others  had  made  Windsor  a  University  strong- 
hold. The  genial  old  chancellor  was  in  the  house  of  his 
friends,  and  unbosomed  himself  freely.  He  read  the 
opinion  of  Chief  Justice  Richardson,  and  indorsed  it.  It 
soon  came  to  the  ears  of  Marsh  and  Webster,  and  the  fol- 
lowers of  Wheelock  all  knew  it.  It  roused  the  combative 
blood  of  Marsh ;  but  Webster,  who  best  understood  the 
position  of  the  judges  in  Trustees  v.  Woodward,  was  de- 
spondent. To  his  chosen  few  he  confessed  that  he  had 
little  hopes  of  success  in  that  case. 

Isaac  Parker,  chief  justice  of  the  Supreme  Court  of 
Massachusetts,  was  the  diivoted  personal  and  political 
friend  of  Webster.  In  his  letter  of  April  28,  1818,  to 
Webster,  which  lies  before  us.  Judge  Parker  says:  <'The 
effect  produced  upon  my  mind  by  the  argument  you  were 
good  enough  to  send  me,  is  such  as  to  induce  me  most 
earnestly  to  wish  that  it  may  not  only  be  printed,  but  pub- 
lished and  extensively  circulated.  Public  sentiment  has  a 
great  deal  to  do  in  affairs  of  this  sort-,  and  it  ought  to  be  well 
founded.  That  sentiment  may  even  reach  and  affect  a  court  : 
at  least,  if  there  be  any  members  who  wish  to  do  right,  but 
are  a  little  afraid,  it  will  be  a  great  help  to  know  that  all  the 
world  expects  they  will  do  right.  Besides,  there  is  a  nat- 
ural leaning  in  favor  of  legislative  power,  for  it  is  the  power 
of  the  people  when  constitutionally  exercised ;  but  the 
people  ought  to  be  made  to  know  that  in  certain  cases  their 


TAPERS    DESTROYED KENT  —  PARKER.  25 1 

rights  are  above  the  reach  of  the  Legislature,  and  thus 
popularity  may  be  given  to  a  denial  of  legislative  power. 
In  popular  governments  it  is  not  onl}'^  expedient,  but  wise, 
to  get  the  people  on  the  side  of  right  principles ;  indeed, 
that  is  the  only  way  effectually  to  prevent  wrong. 

"  The  argument  of  Richardson,  Ch.  Jus.,  is  completely  but 
decorously  answered  in  your  pamphlet;  but,  unansAvered, 
it  will  have  its  weight,  not  only  with  the  vulgar,  but  even 
with  the  bar  and  [those]  who  have  not  leisure  or  inclination 
to  look  into  the  thing  themselves.  It  is  of  importance  to 
enlist  all  enlightened  men  on  your  side  of  the  question,  not 
merely  on  account  of  Dartmouth  College.  Every  institu- 
tion in  the  country  is  liable  to  the  same  attack,  and  must 
[be]  defended  on  the  same  princij^les.  To  show  the  im- 
portance of  presenting  this  argument  to  every  man's  view, 
consider  its  eflfect  upon  me.  When  I  read  Richardson's 
opinion,  although  I  instinctively  revolted  at  his  conclusion, 
yet  I  was  unprepared  to  show  the  fallacy  of  his  fundamental 
point,  viz.,  that  a  literary  institution  was  a  public  corpora- 
tion. Now,  nothing  appears  more  weak  than  his  position, 
for  the  contrary  is  demonstrated  by  reasoning  as  well  as 
authority.  You  heard  not  Leach  too,  who  knows  almost 
everything,  ask  why  a  college  was  not  a  public  corporation. 
It  certainly  is  probable,  then,  that  many  persons,  by  no 
means  ignorant,  are  uninstructed  upon  this  subject,  not 
having  had  occasion  to  consider  it. 

"  I  think,  also,  that  every  judge  of  the  Sup.  Court  of  U. 
S.  ought  to  have  a  copy  of  this  argument  —  for  what  is 
written,  may  be  recurred  to  ;  what  is  spoken,  may  be  lost. 

"  I  believe  the  College  will  ultimately  prevail  in  this  suit, 
for  I  cannot  well  perceive  how  a  decision  against  it  can  be 
maintained  reputably,  considering  the  principles  already 
adopted  by  the  court. 

"You  are  aware,  I  suppose,  that  much  less  interest  has 
been  taken  in  this  question  hy  the  learned  public  than  such 
a  great  question  is  calculated  to  excite.     It  is  because  the 


252  DARTMOUTH  COLLEGE  CAUSES. 

conduct  of  the  trustees,  previous  to  the  assumption  of 
power  by  the  Legislature,  was  generally  thought  to  be  un- 
just and  founded  in  the  narrow  policy  of  sectarians.  The 
exercise  of  power  by  the  Legislature,  too,  has  the  advantage 
of  seeming  to  be  favorable  to  more  enlarged  and  liberal 
views. 

"  Your  pamphlet  is  calculated  to  show  that  something 
more  important  than  the  success  of  a  religious  party  is  at 
stake,  and  to  awaken  the  attention  of  all  who  feel  an 
interest  in  the  principles  upon  which  any  institution  can 
be  supported,  and  this  is  another  strong  reason  for  pub- 
lishing; and  circulating." 

There  are  some  singular  things  about  this  letter.  Whether 
in  his  actual  presence  or  not,  it  was  undoubtedly  written 
after  a  personal  conference  between  Marsh,  the  sole  plaintiff 
in  one,  one  of  the  plaintiffs  in  another,  and  the  active 
counsel  and  a  manager  in  all  these  suits,  with  Judge  Parker, 
for  which  purpose  Marsh  had  apparently  travelled  one 
hundred  and  forty  miles  from  his  home. 

It  was  undoubtedly  taken  from  the  hands  of  its  author 
by  Marsh  to  Webster,  at  Ipswich,  where  the  latter  was. 
Whether  this  was  done,  as  was  suggested  by  Judge  Smith 
in  relation  to  one  of  his  letters,  for  fear  copies  might  be 
taken  in  the  post-office,  does  not  appear. 

The  letter  shows  for  itself  that  it  never  passed  through 
the  mail,  and  bears  upon  its  back,  in  the  handwriting  of  its 
author,  the  following  indorsement:  "  Hon.  Daniel  Web- 
ster.    Marsh,  bearer." 

The  author  of  this  letter  was  the  one  to  whom  Mr. 
Brown  afterwards  referred,  in  his  letter  to  Webster  from 
Albany,  dated  September  9,  1818,  hereafter  quoted.  The 
allusion  to  the  public  sentiment  in  regard  to  the  trustees, 
and  the  necessarily  more  delicate  one  which  had  reference 
to  the  position  of  certain  judges,  can  hardly  be  misunder- 
stood ;  but  the  framers  of  the  Constitution  never  intended 
to  commit  the  guardianship  and  construction  of  that  instru- 


woodward's    death ALBANY    CONFKUENCES.  253 

ment  to  a  court  whose  decisions  were  controlled  by  the 
atmosphere  of  a  manufactured  public  sentiment. 

That  Kent's  opinion  would  have  great  weight  with 
Justice  Johnson,  and  that  his  opinion  and  influence  with 
that  of  Governor  Clinton  were  potential  with  Justice 
Livingston,  was  obvious  to  all  who  understood  the  relations 
of  these  men. 

Those  who  managed  for  the  College  utilized  this  power. 

Judge  Woodward  died,  at  Hanover,  August  9,  1818. 
The  death  of  the  defendant  seems  to  have  given  new  life 
to  the  other  side ;  but  the  legal  warfare,  the  plottings  and 
counter-plottings,  still  went  on  over  his  ashes. 

Marsh,  the  political  friend  of  Kent,  furnished  him  a 
copy  of  Webster's  argument,  and  a  commentary  upon 
the  case,  and  the  Windsor  opinion  referred  to,  in  his 
letter  to  Kent,  of  August  22,  1818,  to  which  the  chan- 
cellor replied  in  his  letter  of  August  26,  1818,  hereafter 
quoted. 

Conferences  were  had  —  mostly  at  Albany,  New  York  — 
between  Kent  and  Johnson,  and  Brown  with  Kent,  Gov- 
ernor Clinton,  and  a  coterie  of  their  adherents.  Kent 
changed  his  views,  and  agreed  to  draw  up  an  opinion  for 
Johnson  in  this  case,  who,  "in  the  end,"  went  with  Liv- 
ingston and  Story.  The  nominal  basis  was,  if  we  are  to 
credit  Kent,  a  political  decision  of  the  Council  of  Revision 
created  by  the  old  Constitution  of  New  York,  made  when 
Kent,  Livingston,  and  Clinton  were  members. 

One  of  the  duties  of  this  tribunal  was  to  see  that  no  law 
passed  which  was  in  violation  of  the  Constitution. 

The  Constitution  of  New  York,  of  April  20,  1777,  con- 
tained the  following  proviso:  "But  that  nothing  in  this 
Constitution  contained  shall  be  construed  to  affect  any 
grants  of  land  within  this  State,  made  by  the  authority 
of  said  king  or  his  predecessors,  or  to  annul  any  charters 
to  bodies-politic,  by  him  or  them,  or  any  of  them  made 


254  DARTMOUTH  COLLEGE  CAUSES. 

prior  to  that  day, [October  14,  1775,]  and  that  none  of  the 
said  charters  shall  be  adjudged  to  be  void  by  reason  of  any 
non-user  or  misuser  of  any  of  their  respective  rights  and 
privileges  between  [April  19,  1775,]  and  the  publication  of 
this  Constitution." 

The  record  is  as  follows  :  — 

CoxmciL  OF  Kevision,  Albany,  April  4,  1804. 

Present,  Governor  Clinton,  Lewis,  Chief  Justice ;  Kent,  Liv- 
ingston, Thompson  and  Spencer,  Justices.  A  bill  entitled,  "An 
act  relative  to  the  election  of  charter  officers  in  the  city  of  New 
York,"  was  before  the  council,  which  adopted  the  following 
objections  reported  by  Justice  Kent,  viz. :  — 

Because  the  bill  contains  important  alterations  in  the  charter 
of  the  said  cit}'-,  and  it  not  appeai'ing  in  the  bill,  by  recital  or 
otherwise,  that  the  same  were  made  upon  the  application  or  with 
the  consent  of  the  parties  interested,  it  is  to  be  intended  that 
they  are  made  without  such  application  or  consent ;  and  although 
it  be  granted  that  such  an  inference  would  be  justified  by  some 
strong  public  necessity,  it  is  not  to  be  presumed  by  the  council 
that  any  such  necessity  exists  in  the  present  case  as  none  are 
recited  in  the  bill  or  appear  from  the  provisions  in  it ;  and  it  has 
been  considered  as  a  settled  and  salutary  principle  in  our  govern- 
ment that,  in  all  cases  where  the  ordinary  process  of  law  affords 
a  competent  remedy,  charters  of  incorporation  containing  grants 
of  personal  and  municipal  privileges  were  not  to  be  essentially 
affected  without  the  consent  of  the  parties  concerned. 

Notwithstanding  the  objections  the  Legislature  passed  the  bill 
into  a  law. 

Considering  the  well-nigh  endless  changes  made  by  the 
Legislature  in  their  charter,  it  would  probably  astound  the 
people  of  New  York,  of  this  day,  to  learn  that  they  were 
invalid  unless  made  with  their  consent. 

Though  there  is  an  apparent  contradiction  in  the  terms, 
Johnson  was  a  Republican  Centralist,  and  Kent,  as  his 
earlier  decisions  showed,  a  State  Rights  Federalist.  They 
naturally  gravitated  towards  each  other. 


COUNCIL    OF   REVISION EMMET.  255 

The  chancellor  was  a  great  admirer  of  Webster,  and 
treated  his  views  with  extreme  deference ;  and,  though 
probaby  not  aware  of  the  fact  himself,  was  a  strong  partisan. 
His  letters  in  the  Bridge  case,  and  treatment  of  Emmet, 
show  this. 

The  question  in  Emmet's  case  was,  virtually,  whether  the 
rules  of  court  requiring  three  or  six  years'  study  should  be 
suspended,  so  that  he  might  be  admitted  to  the  New  York 
bar,  or  whether,  with  his  large  and  dependent  family,  he 
should  be  driven  into  the  western  wilderness.  Under  the 
advice  of  Governor  Clinton,  and  DeWitt  Clinton  then 
mayor  of  New  York,  an  informal  application  in  behalf  of 
Emmet  was  made  to  the  judges  of  the  Supreme  Court  by 
George  and  DeWitt  Clinton.  The  remainder  of  the  story 
is  thus  told  by  Col.  Charles  G.  Haines,  the  friend  and 
admirer  of  Kent,  who  had  it  from  Mr.  Emmet's  own  lips. 
He  says  :  "  Chief  Justice  Spencer  was  then  on  the  bench 
as  a  puisne  judge.  Judge  Thompson  and  Vice-President 
Tompkins  were  also  there.  Chancellor  Kent  was  the  chief 
justice.  Spencer,  Tompkins,  and  Thompson  were  found 
friendly ;  Kent,  peculiarly  hostile.  Judge  Spencer  wa.s 
strong  and  decided,  and  Mr.  Emmet  always  mentions  the 
kindness,  the  friendship,  and  the  effective  aid  of  Vice-Presi- 
dent Tompkins  with  many  expressions  of  gratitude.  Within 
two  years  past  he  argued  a  most  important  cause  for  the 
vice-president,  without  fee  or  reward,  and  obtained  a  ver- 
dict of  $130,000,  it  being  a  suit  with  the  United  States.  He 
said  he  did  it  with  great  pleasure,  in  remembrance  of  former 
friendship.  Chancellor  Kent  was  a  warm,  and  I  may  almost 
say  a  violent  Federalist.  He  execrated  all  republican  prin- 
ciples in  Europe,  and  was  the  disciple  of  Edmund  Burke  as 
to  the  French  Revolution.  He  looked  on  Mr.  Emmet  with 
an  unkind  eye,  and  raised  his  voice  against  his  appearing  in 
the  forums  of  our  State.  To  the  honor  of  the  chancellor, 
however,  let  it  now  be  said,  that  he  has  more  than  once 


256  DARTMOUTH  COLLEGE  CAUSES. 

expressed  joy  to  Mr.  Emmet  that  the  other  judges  overruled 
his  illiberal  objections."  (Memoir  of  Emmet,  by  Haines, 
86,  87.) 

Judse  Livingston  was  a  member  of  the  famous  New  York 
family  of  that  name.  He  was  about  sixty-two  years  old 
when  this  case  was  decided  by  the  Supreme  Court  of  the 
United  States,  and  died  some  four  years  later.  He  gradu- 
ated from  Princeton,  served  upon  the  staff  of  Generals 
Schuyler  and  Arnold  in  the  Revolution,  and  was  admitted 
to  the  bar  in  1783.  For  five  years  after  his  appointment,  in 
January,  1802,  he  occupied  a  seat  between  Kent  and  Thomp- 
son upon  the  Supreme  Bench  of  New  York.  His  opinions 
appear  in  the  first,  and  a  small  part  of  the  second  volume  of 
Johnson's  Reports.  They  exhibit  his  peculiar  characteris- 
tics. It  was  hardly  necessary  for  Kent  to  tell  us  of  Living- 
ston's disrelish  for  English  authorities,  though  he  often 
examined  them  with  great  care  to  see  if  they  agreed  with 
him.  His  hobby  was  commercial  law,  to  which  fact,  and 
the  peculiar  relations  which  the  Livingston  family  had  held 
with  the  political  parties  of  New  York,  he  was  mainly 
indebted  for  his  appointment  by  Jefferson.  He  was  an 
accomplished  scholar,  an  excellent  advocate,  and  an  able 
judge.  His  peculiar  organization  gave  him  great  independ- 
ence. Kent  had  great  influence  with  him.  The  shrewd  old 
chancellor,  in  liis  letter  of  October  6,  1828  (.Southern  Law 
Review,  July,  1872),  says:  "In  February,  1798,  I  was 
offered  by  Governor  Jay,  and  accepted,  the  office  of  youngest 
judge  of  the  Supreme  Court.  This  was  the  summit  of  my 
ambition.  *  *  *  I  never  dreamed  of  volumes  of  reports, 
and  written  opinions  ;  such  things  were  not  then  thought  of. 
*  *  *  When  I  came  to  the  bench  there  were  no  reports 
or  State  precedents.  The  opinions  from  the  bench  were 
delivered  ore  tenus.  We  had  no  law  of  our  own,  and  nobody 
knew  what  it  was.  *  *  *  Many  of  the  cases  decided 
during  the  sixteen  years  I  was  in  the  Supreme  Court  were 


LIVINGSTON  —  Kent's  influence.  257 

labored  by  me  most  unmercifully,  but  it  was  necessary  under 
the  circumstances  to  subdue  opposition.  We  had  but  few 
American  precedents  ;  our  judges  were  democratic,  and  my 
brother  Spencer,  particularly,  of  a  bold,  vigorous,  dogmatic 
mind,  and  overbearing  manner.  English  authorities  did  not 
stand  very  high  in  these  feverish  times,  and  this  led  me  a 
hundred  times  to  attempt  to  bear  down  opposition,  or  shame 
it  by  exhausting  research  and  overwhelming  authority. 
*  *  *  I  made  much  use  of  the  corpus  juris,  and  as  the 
judges  (Livingston  excepted)  knew  nothing  of  French  or 
civil  law,  I  had  an  immense  advantage  over  them.  I  could 
generally  put  my  brethren  to  rout  and  carry  my  point  by 
my  mysterious  wand  of  French  and  civil  law.  The  judges 
were  republicans,  and  very  kindly  disposed  to  every  thing 
that  was  French,  and  this  enabled  me,  without  exciting  any 
alarm  or  jealousy,  to  make  free  use  of  such  authorities,  and 
thereby  enrich  our  '  commercial  law.'  I  gradually  acquired 
proper  directing  influence  with  my  brethren,  and  the  vol- 
umes in  Johnson,  after  I  became  judge  in  1804,  show  it." 

Col.  Haines,  who  had  for  years  been  on  terms  of  close 
intimacy  with  Livingston,  and  was  as  familiar  with  his 
opinions  in  manuscript  as  he  was  with  those  of  Chancellor 
Kent,  in  his  argument  in  Ogden  v.  Saunders,  to  which  we 
have  before  referred,  says:  '<Mr.  Justice  Livingston, 
recently  one  of  this  court,  was  the  associate  of  Alexander 
Hamilton,  Chancellor  Livingston,  and  other  able  and  effi- 
cient men  who  contributed  to  the  establishment  of  the 
Constitution,  and  took  a  leading  part  himself  in  the  events 
of  the  times." 

He  then  quotes,  in  relation  to  the  history  of  the  obligation 
clause,  from  the  opinion  given  by  Livingston  in  Adams  v. 
Storey.  That  opinion  was* in  striking  contrast  with  the 
opinion  of  Marshall  on  the  same  subject,  in  Sturges  v. 
Crowninshield. 

Adams  v.  Storey  (Paine  C.  Ct.  79,  109)  was  decided  by 
Judge  Livingston,  at  the  April  term,  1817.    It  was  an  action 


258  DARTMOUTH  COLLEGE  CAUSES. 

brought  on  promissory  notes  made  or  indorsed  by  the  de- 
fendant, then  residing  in  Boston,  to  the  plaintiff,  who  were 
then  and  at  the  time  of  the  decision  residents  of  Boston, 
where  the  notes  were  made  payable.  The  notes  were  given, 
etc.,  prior  to  the  passage  of  the  statute  of  New  York,  of 
April  3, 1811,  "  for  the  benefit  of  insolvent  debtors  and  their 
creditors."  The  plaintiff  gave  notice,  under  the  general 
issue,  that  he  should  put  in  evidence  a  discharge  by  the 
recorder  of  the  city  of  New  York,  granted  under  said  stat- 
ute, November  13,  1811,  where  the  defendant  then  resided. 
A  verdict  was  taken  for  the  plaintiff  by  consent,  subject 
to  the  opinion  of  the  court  on  the  case  stated. 

In  summing  up,  Livingston  says  :  '*  Upon  the  whole  this 
court  is  of  opinion,  that  the  act  of  the  3d  of  April,  1811, 
is  an  insolvent,  and  not  a  bankrupt  law  —  that  if  it  be  of 
the  latter  description,  the  several  States  have  a  right  to  pass 
bankrupt  laws  for  themselves,  until  Congress  shall  establish 
a  uniform  system  on  the  subject  —  that  an  insolvent  act 
extending  to  past,  as  well  as  future  debts,  is  not  a  law 
'  impairing  the  obligation  of  contracts,'  within  the  meaning 
of  the  Constitution — and  that  a  Federal  Court,  sitting 
within  this  State,  is  bound  to  support  a  discharge  under 
such  law,  against  the  claim  of  a  foreign  creditor,  although 
the  debt  due  to  him  may  have  been  contracted  and  made 
payable  at  his  place  of  residence." 

The  opinion  is  about  thirty  pages  in  length,  and  contains 
an  elaborate  discussion  of  the  obligation  clause,  and  that  in 
relation  to  banla-uptcies.  He  denies  that  the  law  of  the 
place  where  the  contract  was  made  enters  into  the  contract 
or  its  obligation,  and  that  the  rule  so  often  cited  from 
Huberus  and  Casaregis  has  any  application,  and  says  : 
' '  When  the  latter  speaks  of  contracts  territorial  and  exter- 
ritorial, it  is  most  manifest  that  he  means  nothing  more 
than  that  a  contract  made  in  one  country  is  not  to  be  con- 
strued by  the  laws  of  another.  Now  the  difficulty  is  to  find 
out  what  the  lex  loci  contractus  has  to  do  with  the  case  of  a 


Livingston's  opinion  in  adams  v.  storey.        259 

future  insolvency,  or  how  the  hnv  of  one  country  can  differ 
from  that  of  another  in  this  respect.  It  is  piresumed  to  be 
law  everywhere  that  a  man  is  to  pay  according  to  his  con- 
tract ;  but  if  he  be  unable  to  pay  any  where,  what  then  has 
the  lex  loci  to  do  with  the  case  ?  *  *  *  The  power  to. 
pass  laws  of  this  character,  [bankrupt  laws]  it  is  said,  is 
exclusively  vested  in  Congress,  and  whether  they  exercise 
it  or  not,  no  State  can  have  a  bankrupt  law  of  its  own.  As 
a  consolidation  of  the  different  States  into  one  national 
sovereignty  was  neither  effected  nor  intended  to  be  effected 
by  the  Constitution,  it  has  always  been  conceded  that  the 
State  governments  retained  so  much  of  the  power,  which 
they  before  had,  as  was  not  by  that  instrument  exclusively 
delegated  to  the  United  States.  *  *  *  It  is  ao-reed  that 
such  exclusive  alienation  of  State  sovereignty  can  only  exist 
in  three  cases  :  where,  by  its  terms,  it  is  so  ;  or  where  a 
power  is  conferred  on  the  Federal  government,  and  the 
States  are  prohibited  from  exercising  a  similar  authorit}^ ;  or 
where  an  authority  is  granted  to  the  former,  to  which  the 
exercise  of  a  like  power  on  the  part  of  the  different  States 
would  be  absolutely  and  totally  contradictory  and  repugnant. 
It  is  not  pretended  that  the  grant  of  the  power  under  con- 
sideration is  exclusive  in  its  terms,  or  that  there  is  an 
express  prohibition  on  the  States  from  exercising  a  like 
authority,  but  it  is  supposed  that  such  exercise  would  be 
so  totally  inconsistent  with  the  one  granted  to  the  govern- 
ment of  the  Union,  as  to  be  necessarily  comprehended  in 
the  third  class  of  exclusive  delegation.  *  *  *  It  is  an 
uniform  rule  which  Congress  are  to  prescribe.  But  if  they 
furnish  none  how  is  it  an  interference  for  each  State  to  leg-is- 
late  for  itself?  Neither  the  terms  nor  the  spirit  of  the 
instrument  are  thus  disturbed.  It  seems  designedly  to  have 
been  left  optional  with  the  general  government  to  exercise 
this  power,  that  if  the  embarrassments  which  lay  in  their 
way  were  insurmountable,  or  very  great,  they  might  omit 
to  do  it,  and  thus  leave  the  States  to  take  care  of  them- 
selves.    If  it  had  been  intended  immediately  to  divest  the 


260  DARTMOUTH  COLLEGE  CAUSES. 

States  of  all  power  on  this  subject,  and  to  compel  Congress 
to  act,  the  terms  of  the  article  would  have  been  much  m'ore 
imperative  than  we  find  them,  and  probably  it  would  have 
been  accompanied  with  a  prohibition  on  the  States." 

He  further  says:  "Another  constitutional  objection  is 
made  to  the  defence  which  is  set  up  in  this  cause.  The  law 
under  which  this  discharge  was  obtained,  having  passed 
subsequent  to  .the  date  of  the  notes  on  which  the  action  is 
brought,  is  supposed  to  '  impair  the  obligation  of  contracts,' 
and  therefore  to  be  void,  either  in  the  whole  or  so  far  as  it 
may  extend  to  debts  incurred  previous  to  the  passage  of  it. 
There  is  not  perhaps  in  the  Constitution  any  article  of  more 
ambiguous  import,  or  which  has  occasioned  and  will  con- 
tinue to  occasion,  more  discussion  and  disagreement,  than 
the  one  under  which  the  present  difficulty  arises,  or  the 
application  of  which  to  the  cases  which  occur,  will  be 
attended  with  more  perplexity  and  embarrassment.  Laws 
may  be  passed  which  so  palpably  trespass  on  this  article  as 
to  leave  no  doubt  in  the  mind  of  any  man  ;  others  again  will 
be  of  so  questionable  a  character  as  to  render  it  not  very 
easy  to  form  a  satisfactory  opinion  concerning  them.  All 
the  other  restraints  upon  the  separate  members  of  the  Con- 
federacy, contained  in  this  section  of  the  Constitution  are 
conceived  in  terms  so  clear  and  intelligible,  that  rarely  will 
any  hesitation  exist  as  to  what  will  amount  to  violations  of 
them ;  but  to  decide  whether  a  law  impairs  the  obligation 
of  a  contract,  will  generally  be  a  task  of  some  intricacy, 
and  it  will  not  be  surprising  if,  in  the  discharge  of  it,  great 
diversity  of  opinion  should  arise.  *  *  *  To  arrive  at 
the  true  meaning  of  any  article  of  doubtful  import  in  the 
Constitution,  a  better  mode  cannot  be  adopted  than  the 
course  which  is  generally  pursued  for  the  interpretation  and 
understanding  of  ordinary  remedial  statutes  ;  that  is,  to 
recur  to  the  situation  and  history  of  the  country  at  the 
time  ;  to  its  contemporaneous  exposition,  if  it  has  received 
anv ;  and  to  the  general  understanding  of  the  community, 
especially  if  such  understanding  shall  have  been  long  acqui- 


LIVINGSTON ADAMS    V.  STOREY.  261 

esced  in  by  all  the  States  and  all  the  courts  of  the  Union. 
Keeping  in  view  these  rules,  let  us  inquire  what  were  the 
kind  of  laws  to  which  this  prohibition  was  principally 
designed  to  extend.  There  can  be  no  doubt  that  by  it  was 
intended  to  be  corrected  some,  if  not  all,  of  the  evils  which 
had  crept  into  the  system  of  legislation  of  many  of  the 
States,  and  had  excited  a  considerable  alarm  for  the  security 
of  private  rights.  *  *  *  During  a  long  and  arduous 
struggle  for  independence,  much  individual  misery  and 
distress  w^ere  unavoidably  produced.  Driven  from  their 
homes,  and  cut  off  in  many  cases,  from  their  ordinary  pur- 
suits, the  resources  of  many  were  either  exhausted  or  so 
much  impaired,  as  to  induce  the  Legislature,  on  various 
occasions,  to  listen  to  the  pressing  calls  which  were  made 
upon  them  to  devise  some  mode  for  their  relief.  Various 
expedients  were  accordingly  resorted  to,  and  the  practice  of 
interfering  between  creditor  and  debtor  became  so  very 
extensive,  and  so  inconsiderate,  as  in  many  instances  to 
place  the  former  entirely  at  the  mercy  of  the, latter,  and 
that,  too,  under  laws  which  were  apparently  introduced 
with  no  other  view  than  that  of  affording  to  the  debtor  a 
temporary  relief  from  the  pressure  occasioned  by  the  then 
situation  of  the  countr3^  Bills  of  credit,  and  paper  money, 
were  issued,  and  by  legislative  sanction  were  substituted  for 
o;old  and  silver  in  the  discharge  of  debts.  Creditors,  in 
some  places,  were  liable,  without  any  adverse  proceeding  on 
their  part,  to  be  cited  by  their  debtors,  and  to  have  the  sums 
due  to  them  tendered  in  a  currency  whose  depreciation  at  the 
time  produced  the  most  glaring  injustice.  On  their  refusal 
to  submit  to  this  mockery  of  justice,  the  public  securities, 
which  had  been  thus  offered  might  be  deposited  with  some 
public  officer,  and  the  creditor  was  forever  barred  from  any 
recovery.  In  other  cases,  payments  were  authorized  to 
be  made  by  instalments.  In  some  States,  the  interest  which 
had  accrued  during  the  war,  or  a  part  of  it,  Avas  remitted  ; 
while  elsewhere,  not  only  a  paper  currency  of  no  value,  ]:)ut 


2Q2  DARTMOUTH  COLLEGE  CAUSES. 

almost  every  species  of  property,  was  made  a  legal  tender, 
and  no  stipulation,  however  solemn,  to  pay  in  the  precious 
metals,  afforded  any  security  to  the  creditor.  The  courts 
of  justice,  in  many  of  the  States,  had  been  closed  altogether, 
and  the  creditor  thus  withheld,  at  least  for  a  time,  from 
every  appeal  to  the  laws  of  his  country,  while  his  debtor 
might  be  squandering  the  property  out  of  which  his  demand 
ought  to  have  been  satisfied.  Geographical  limits  had  also 
been  resorted  to  for  the  purpose  of  introducing  the  most 
odious  discriminations  between  creditors  themselves.  For 
those  who  resided  within  the  British  lines  and  those  who 
were  without  these  precincts,  distinct  remedies  were  pre- 
scribed, and  the  scales  of  justice  so  unequally  graduated, 
that  while  the  latter  might  recover  the  whole  of  their 
demands,  the  former,  if  they  sued,  were  compelled  to 
receive  public  certificates  of  one  description  or  other,  of  so 
little  value,  as  scarcely  to  indemnify  them  for  the  costs  of 
suit  which  they  were  ol)liged  to  pay.  Very  great  liberties 
had  also  been  taken  with  British  creditors,  many  of  whom 
complained,  and  too  justly,  of  the  impediments  which  con- 
tinued to  be  thrown  in  their  way,  even  after  the  return  of 
peace." 

We  have  the  authority  of  Story  for  saying  that  Living- 
ston did  not  recant  these  views  in  Sturges  v.  Crowninshield. 

We  copy  entire  the  letter  from  Kent  to  Marsh,  to  which 
we  have  already  adverted  :  — 

Albany,  26  August,  1818. 

Dear  Sir, — Your  letter  of  the  22d  inst.  with  Mr.  "Webster's 
argument  was  received  this  morning,  &  I  thank  you  for  this 
mark  of  attention. 

The  argument  does  credit  to  the  talents  &  principles  of  Mr. 
Webster.  I  have  been  long  taught  by  his  parliamentary  produc- 
tions to  esteem  &  admire  him.  I  took  a  hasty  journey  the  other 
day  through  part  of  your  State  to  recruit  my  spirits.  Mrs  K  & 
I  started  in  the  stage  from  this  city  and  reached  Brattleboro  the 
same  day.  This  ride  gave  me  abundantly  what  I  sought,  which 
was  jolting  mountain  air.     The  next  day  we  went  up  to  Hanover 


KENT    TO    MAKSII.  263 

&  while  rambling  there  over  the  beautiful  green  I  met  a  gentle- 
man I  knew  &  this  led  me  to  an  introduction  to  the  president  & 
professors  of  the  university.  I  was  not  so  fortunate  as  to  meet 
with  a  similar  introduction  to  the  officers  of  the  college  though 
it  was  equally  desirable.  Being  on  the  spot  &  witnessing  the 
college  sessions  I  was  anxious  to  know  something  of  the  contro- 
versy though  nothing  was  said  on  the  subject  by  the  gentlemen 
to  whom  I  was  introduced.  I  had  often  casually  heard  the 
subject  mentioned  but  knew  nothing  of  its  merits.  After  some 
search  I  was  enabled  to  purchase  the  opinion  of  the  Sup.  Court 
of  N.  H.  as  delivered  by  the  Ch.  J.  and  read  it  the  next  day  on 
my  return  to  Windsor.  That  opinion  furnished  me  with  the  few 
scanty  facts  I  possessed  in  regard  to  the  great  constitutional  ques- 
tion and  it  appeared  to  me  on  a  hasty  perusal  of  it  that  the  Legisla- 
ture was  competent  to  pass  the  laws  in  question,  for  I  was  led  by  the 
opinion  to  assume  the  fact  that  Dartmouth  College  was  a  public  es- 
tablishment for  purposes  of  a  general  nature.  I  knew  nothing,  nor 
do  I  now  know  anything  material  in  respect  to  the  policy  or  motives 
of  the  laws  or  what  were  the  real  inducements  to  pass  them. 

But  I  will  declare  to  you  with  equal  frankness  that  the  fuller 
statement  of  facts  in  Mr.' W.'s  argument  in  respect  to  the  original 
&  reasons  &  substance  of  the  charter  of  1769  and  the  sources 
of  the  gifts,  gives  a  new  complexion  to  the  case  and  it  is  very 
probable  that  if  I  was  now  to  sit  down  and  seriously  study  the 
case  with  the  facts  at  large  before  me  that  I  should  be  led  to  a 
different  conclusion  from  the  one.  I  had  at  first  formed.  But  my 
hasty  impressions  one  way  or  the  other  are  not  worth  mentioning 
for  I  deem  them  of  no  value.  I  have  merely  stated  these  inci- 
dents to  show  how  very  acceptable  is  the  argument  you  sent  me. 
I  am  exceedingly  pleased  with  the  settlements  on  Connecticut 
River.  We  rode  from  Windsor  to  Burlington  in  a  day  and  I  had 
only  a  glimpse  of  Woodstock  where  you  reside  as  we  passed 
rapidly  through  it  about  sunrise.  The  ride  that  day  was  delight- 
ful, for  I  have  always  looked  on  mountain  scenery  and  the  quiet  & 
substantial  comforts  of  country  life  with  enthusiasm.  I  hope  you 
will  make  yourself  known  to  me  if  you  ever  pass  thi-ough  Albany. 

James  Kent. 

To  Charles  Marsh,  Esq. 

As  has  already  been  suggested,  the  opinion  of  Judge 
Richardson  contained  a  statement  of  facts  ;  and  the  pam- 


264  DARTMOUTH  COLLEGE  CAUSES. 

phlet  produced  by  Kent  gave  precisely  the  same  informa- 
tiou  as  the  State  report.  Probably  no  person  was  ever 
misled  by  the  State  report,  —  except  (?)  Chancellor  Kent. 
Strange  as  it  may  seem,  Daniel  Webster  and  Jeremiah 
Mason  never  discovered  it. 

The  State  of  New  York  was  divided  between  Clinton  and 
Tompkins. 

Unfortunately  for  Wheelock's  adherents,  the  organiza- 
tion of  the  party  with  which  they  necessarily  became 
affiliated  in  New  Hampshire  was  controlled  by  men  bitterly 
opposed  to  Clinton.  No  man  knew  it  better  than  he,  for 
a  portion  of  his  most  active  supporters,  like  Colonel  Haines, 
were  New  Hampshire  men,  familiar  with  every  phase  of  the 
College  quarrel  and  the  political  warfare  in  the  State. 

Clinton  was  able,  strong-willed,  and  combative  in  the 
highest  degree.  Like  the  petrel,  he  was  always  at  home 
in  a  storm.     Governor  Plumer  was  an  anti-Clintonian. 

In  August,  1818,  Isaac  Hill,  the  great  pillar  of  support 
of  the  Wheelock  cause,  with  whom  Haines  was  well 
acquainted,  openly  assailed  Clinton  with  great  bitterness 
in  his  newspaper.  It  was  but  natural  for  President  Brown 
to  "  hope,"  under  these  circumstances,  that  Clinton  *'  would 
incline  to  favor  us  rather  than  our  competitors." 

The  followinsf  remarkable  letter  from  Brown  to  Webster, 
dated  at  Albany,  September  8,  1818,  throws  a  flood  of  light 
on  this  part  of  the  inside  history  of  these  causes.  He  says  : 
"  I  arrived  in  this  city  three  days  ago  on  a  journey  under- 
taken for  the  general  purposes  of  the  College. 

"  I  have  seen  Chancellor  Kent,  and  am  to  dine  with  him 
to-day.  The  chancellor  was  in  our  quarter  about  the  last 
of  July  —  saw  Judge  K.'s  opinion  —  was  pleased  with  it  — 
&  spoke  in  approbation  of  it  before  the  great  men  of  Wind- 
sor. The  story  of  course  went  through  the  country,  that 
Chan.  K.  had,  after  examination  of  the  case,  given  a  decided 
opinion  in  favor  of  the  Univ.  Mr.  Marsh  sent  him  your 
argument. 

"  As  soon  as  I  saw  him,  he  began  to  express  his  regret  at 


THE  ALBANY  LETTER.  26^) 

what  he  had  said  at  Windsor  —  he  really  had  not  examined 
the  subject  at  all  —  gave  a  hasty  perusal  to  Judge  K.'s 
pamphlet  —  was  disappointed  to  find  in  it  so  much  legal 
talent  —  and,  although  he  was  careful  to  state  that  his 
opinion  was  not  to  be  relied  on,  yet,  if  the  premises  as- 
sumed by  the  court  were  correct,  he  did  not  see  but  the 
conclusion  would  follow.  This  is  substantially  the  account 
he  gives  of  his  remarks  at  Windsor.  He  told  me  he  had 
replied  to  Mr.  Marsh's  letter  accompanying  the  argument, 
and  had  said  to  him,  that  this  argument  gave  a  very  dif- 
ferent complexion  to  the  case,  &c. 

"  I  think  it  may  be  of  some  importance  to  the  right 
decision  of  the  case,  that  the  chancellor  should  not  only 
have  a  correct  opinion,  but  should  be  induced  to  declare  it. 
Judge  Johnson  has  been  here.  This  the  chan.  mentioned, 
&  he  also  said  that  the  judge  conversed  on  our  case,  &  re- 
marked that  the  court  had  a  cause  of  '  awful '  magnitude  to 
decide  &c.  From  what  I  learn  from  other  sources  the 
judge  has  formally  requested  the  chan.'s  opinion.  This 
opinion,  if  given,  will  also  have  great  influence  on  Judge 
Living-ston.  Now  I  think  the  chan.  on  examination  of  the 
case,  cannot  fail  to  be  right.  He  had,  he  said,  great 
pleasure  in  reading  your  argument,  and  spoke  in  terms 
sufficiently  flattering  of  the  legal  a1)ility  &  logical  power 
displayed  in  it,  &  added  he  should  probably,  if  he  had 
time  to  examine  all  the  facts,  agree  fully  with  you.  But 
still  there  was  some  reserve,  which  perhaps  arose  alto- 
gether from  an  apprehension  that  I  should  imprudently 
report  what  he  might  say,  — but  possibly  it  may  be  other- 
"wise. 

' '  I  have  thouo;ht  it  best  to  communicate  these  facts  to 
you,  that  you  may  consider  whether  any  thing  is  to  be 
done.  Does  Judge  Parker  know  the  chancellor,  &  would 
he  be  inclined  to  write  him  on  the  subject? 

^^  Evening. — I  have  been  with  the  chancellor.  He  has 
read  the  charter,  and  it  is  evident  to  me  that  he  is  satisfied. 
I  asked  him  if  the  corporation  of  D.  C.  did  not  appear  to 


266  DARTMOUTH  COLLEGE  CAUSES. 

be  a  private  eleemosynary  corporation.  He  smiled  &  said 
he  believed  he  must  express  no  more  opinions  till  the  cause 
should  be  decided. 

"  I  have  also  been  presented  to  Gov.  Clinton  to-day, 
who  kindly  inquired  respecting  our  cause,  &  expressed  a 
desire  to  see  our  charter  &  the  argument.  These,  of  course, 
I  did  not  hesitate  to  furnish  him.  I  shall  have  opportunity 
of  calling  on  him  again  before  I  leave  Albany,  and  hope  he 
will  incline  to  favour  us  rather  than  our  competitors. 

"  The  following  statement,  which  I  have  had  from  the 
best  authority,  will  show  the  leaning  of  three  great  men 
in  New  York  :  In  1803,  the  Leg.  of  this  State  attempted  to 
change  the  charter  of  N.  Y.  City  without  consent  of  the  cor- 
poration. The  present  gov.  &  chan.,  &  Judge  Livingston 
were  of  the  Council  of  Revision  (if  that  be  the  name),  that 
year  —  the  chan.  objected  to  the  bill,  and  assigned  his  rea- 
sons, which  embrace  some  of  the  main  points  of  your  argu- 
ment. The  objection  was  overruled.^  The  next  year  a  still 
further  attempt  was  made  by  the  Legislature,  a  similar 
objection  was  made,  and  it  prevailed.  Both  Gov.  Clinton 
and  Judge  Livingston  sided  with  the  chan. 

"  Judge  Johnson  expressed  to  Chancellor  Kent  a  strong 
desire  to  have  a  copy  of  the  printed  argument.  I  wish  you 
would  forward  one  to  him.     I  have  none  to  spare." 

This  letter  went  from  Webster  into  the  hands  of  Farrar, 
another  of  the  counsel.  Farrar  preserved  it  with  great 
care,  and  it  is  now  in  the  archives  of  the  New  Hampshire 
Historical  Society,  among  the  papers  relating  to  these  causes, 
known  as  the  "  Farrar  Papers." 

Whether  ' '  Judge  Parker  ' '  wrote  ' '  the  chancellor  ' '  or 
not,  does  not  as  yet  appear.  We  have  been  unable  to 
exhume  the  Kent-Johnson  opinion,  our  letter-files  showing 
that  Johnson's  papers,  like  those  of  Pinkney  and  Haines, 
have  been  scattered  to  the  four  winds. 

Mr.  Brown  does  not  state  who  his  informants,  <'the  best 

'  See  Brown's  letter  to  "Webster,  of  September  15,  1818,  hereafter  quoted. 


COLONEL    HAINES.  207 

authority,"  "  and  other  sources,"  were.  Several  undoubt- 
edly contributed,  but  he  was  probably  more  indebted  to 
Colonel  Haines  than  any  other  one. 

Haines  was  a  young  man  of  rare  promise  and  exceptional 
facilities.  He  was  born  in  1793,  in  Canterbury,  which  joins 
Concord,  New  Hampshire,  the  ancient  boundaries  of  his 
native  town  touching  the  "  paternal  acres  "  of  Webster. 

When  fourteen  years  of  age,  with  Nathaniel  H.  Carter,  who 
was  afterwards  one  of  the  professors  in  the  University,  and  a 
prominent  New  York  Clintonian  editor,  politician,  and  man 
of  letters,  and  others,  he  became  a  clerk  in  the  office  of 
Philip  Carrigan,  then  secretary  of  state  of  New  Hampshire. 
He  graduated  at  Middlebury  College,  Vermont,  in  1816. 
In  1817,  for  the  benefit  of  his  health,  he  took  a  trip  on 
horseback  to  Albany  and  Pittsburg.  On  this  trip  he  became 
acquainted  with  Surrogate  Sylvanus  Miller,  and  then  with 
Governor  Clinton,  who  induced  him  to  go  to  New  York. 
He  soon  returned,  read  law  with  Horatio  Seymour,  after- 
wards United  States  senator  from  Vermont,  and  acted  as 
assistant  editor  of  a  political  newspaper  at  the  same  time. 
Early  in  1818  he  removed  to  New  York,  and  entered  the 
office  of  Pierre  Van  Wyck,  became  the  protege  of  Clinton, 
who  gave  him  the  confidential  position  of  private  secre- 
tary, which  he  held  till  1821.  He  served  his  patron  with 
a  devotion  which  knew  no  bounds,  till  his  death,  July  3, 
1825. 

He  edited  The  United  States  Law  Journal,  and  wrote  a 
legion  of  essays  on  legal,  historical,  and  political  subjects. 

It  is  tribute  enough  to  his  ability  to  say  that  his  argu- 
ment in  Ogden  v.  Saunders  carried  with  him  a  majority  of 
the  Supreme  Court,  against  Wheaton,  Webster,  Story,  and 
John  Marshall,  and  is  to-day,  without  a  dissenting  voice,  the 
recognized  law  of  the  Union.  Webster,  after  his  death,  said 
of  him  :  "  He  was  ten  years  my  junior,  and  when  he  died  I 
think  the  most  brilliant  man  in  the  country."  Whoever 
had  his  ear  had  that  of  Clinton. 

If  the  daily  journal  wliich  Kent   kept,  and  his    pri\jite 


268  DARTMOUTH  COLLEGE  CAUSES. 

papers,  are  ever  given  to  the  public,  they  will  probably  throw 
additional  light  upon  the  subject. 

Apparently  not  one  word  of  this  ever  came  to  the  ears  of 
the  counsel  for  the  University,  or  any  of  its  friends. 

The  statement  in  Brown's  letter,  in  relation  to  the  Council 
of  Revision,  and  that  of  Haines  in  Ogden  v.  Saunders,  on 
another  point,  are  almost  identical,  showing  that  they  had 
a  common  source.  Colonel  Haines  said  :  "  Legislative  ex- 
positions are  not  to  be  relied  on  in  determining  constitu- 
tional questions  ;  but  it  may  be  well  to  state  that  there  was 
formerly  a  peculiarity  in  the  Constitution  of  the  State 
of  New  York  worthy  of  notice.  The  old  Constitution  was 
adopted  in  1777,  and  established  a  Council  of  Revision, 
composed  of  the  governor  of  the  State,  the  chancellor,  and 
the  five  judges  of  the  Supreme  Court.  It  was  the  par- 
ticular duty  of  this  Council  to  revise  all  laws  before  they 
received  their  last  sanction,  and  to  judge  of  their  consti- 
tutionality. This  Council  was  under  oath  to  support  the 
Constitution  of  the  United  States.  One  year  after  the 
adoption  of  the  Constitution  of  1777  a  general  bankrupt 
system  was  established  in  New  York.  In  1801  it  was 
revised.  In  1811  there  was  a  new  system;  and  in  1813 
the  old  law  of  1801  was  revived.  Chief  Justice  Jay, 
George  Clinton,  Chancellor  Livingston,  Chancellor  Kent, 
and  Chief  Justices  Thompson  and  Spencer  were  members 
of  this  Council.  They  saw  no  repugnancy  to  the  Consti- 
tution of  the  United  States  in  these  laws,  as  they  came 
under  their  review." 

While  en  route  from  Albany,  Brown  wrote  to  Webster 
the  following  significant  letter,  which  lies  before  us  :  — 

Keedsboro  (Green  Mountains),  Sept.  15,  1818. 
My  Dear  Sir,  —  I  am  so  far  on  my  way  from  Albany.  After 
I  wrote  you  I  had  repeated  opportunities  with  the  chancellor. 
There  is  no  doubt  that,  by  the  argument  &  the  charter,  he  is 
brought  completely  over  to  our  side ;  &  he  has  a  full  impression 
of  the  importance  of  the  question.  I  believe  he  will  take  every 
proper  and  prudent  measure  to  impart  correct  views  to  others. 


THE    CONFERENCES    AT    ALBANY.  2G'J 

While  I  remained  in  Albany  another  copy  of  your  argument  fell 
into  his  hands,  which,  he  said,  agreeably  to  the  strong  wish 
of  Judge  Johnson,  he  should  transmit  to  him.  You  will  judge 
of  the  expediency  of  requesting  any  Mass.  jurist  to  write  a  line 
to  the  chancellor,  as  hinted  in  my  last.  A  little  delay,  however, 
I  should  think  advisable,  should  any  communication  be  made. 

I  said  something  respecting  legislative  interference  with  the 
charter  of  the  city  of  N.  Y.  A  part  was  correct,  &  a  part  not. 
The  following  presents  a  true  view  of  the  case.  With  the  chan.'s 
permission,  I  copied  from  an  appendix,  in  his  own  handwriting, 
to  a  printed  collection  of  the  proceedings  of  the  city  corporation, 
as  follows :  — 

"In  Council  of  Revision,  March  4,  1803. 

"  Present,  the  Govr.  ;  Judges  Kent,  Livingston,  Thompson. 
The  bill  below  mentioned  was  committed  to  me." 

"  In  Council,  March  8,  1803. 

"Present,  ut  supra. 

"  I  reported  the  following  objections,  &c. :  (The  bill  was  enti- 
tled, '  An  act  to  increase  the  number  of  wards  in  the  city  of  New 
York,'  &c.) 

"1.  The  bill  contains  certain  alterations  in  the  charter  of  said 
city,  not  made  on  application,  or  with  the  consent  of  the  mayor, 
aldermen,  &c. 

"2.  This  alteration  without  consent  is  a  breach  of  the  faith 
of  govt,  pledged  to  p.  corporations,  &c. 

"3.  If  the  alteration  contained  in  the  sd.  bill  can  be  made 
without  consent  of  the  cor.,  others  may  be,  &c.  And  any 
charter  or  grant  from  govt,  can  be  altered  or  rescinded  at 
pleasui'e. ' ' 

(All  the  Council  against  him.) 

"In  Council  of  Rev.,  March  31,  1804. 

"Present,  the  Govr.  (Clinton),  George;  Chf.  Just.  Lewis; 
Judges   Kent,  Livingston,  Thompson,  Spencer. 

"A  bill  entitled,  'An  act  relative  to  the  election  of  charter 
officers  in  the  city  of  N.  Y.,'  was  read  and  committed  to  Mr. 
Justice  Kent." 

(From  objns.  I  quote  only  the  following:) 

"  It  has  been  considered  &  treated  as  a  settled  and  salutary 
principle  in  our  govt,  that  charters  of  incor.  were  not  to  be 
essentially  affected  without  due  process  of  law,  or  without  con- 


270  DARTMOUTH  COLLEGE  CAUSES. 

sent  of   the  parties  concerned.      Nothing  but  a  strong  puhlick 
necessity  would  justify  such  an  interference. 

(This  objection  was  overruled  by  all  the  judges.  The  Govr. 
requested  time  to  deliberate. ) 

"In  Council,  April  4,  the  Govr.  reported  an  objection  sub- 
stantially the  same"  as  the  above;  in  which  Judges  Kent, 
Livingston  &  Thompson  concurred ;  the  other  two  non-concurred. 

The  chancellor  sd.  it  was  to  be  considered  he  made  these 
objns.  as  a  politician,  not  as  a  judge  ;  and  he  was  not  clear  that 
the  doctrine  laid  down  was  correct,  as  applied  to  corporations  for 
the  purpose  of  govt.,  &c.  Of  all  this  a  prudent  use  is  to  be 
made  by  us. 

As  to  DeWitt  Clinton,  to  whom  I  lent  the  argument,  he  went 
off  to  his  canal  before  I  called  for  it  &  carried  it  with  him. 
No  harm,  I  trust,  will  arise  from  its  remaining  with  him. 

I  regard  my  visit  to  Albany  as  of  no  small  importance  to  our 
cause.  The  Court  of  Errors  being  in  session,  the  greatest  legal 
talents  in  the  State  were  convened  there ;  and,  so  far  as  any 
impression  has  been  given,  it  is  unquestionably  in  our  favor. 
The  whole  is,  of  course,  attributable  to  you.  Every  day  brings 
additional  proofs  of  the  propriety  &  even  necessity  of  giving 
circulation  to  your  argument.  I  ought  to  have  added  above,  that 
Gov.  Clinton  said  he  understood  the  Sup.  Court  would  sus- 
tain the  action  and  probably  decide  for  the  College. 

So  much  for  Albany.  I  know  not  whether  j'ou  will  be  able 
to  dec3q)her  this ;  if  not,  please  to  write  me,  &  I  will  endeavor 
to  explain.  I  am,  my  dear  sir,  truly  yours, 

Francis  Brown. 
Hon.  D.  Webstbr. 

Webster  replied  to  these  letters.  His  answers  are  still 
in  existence.  We  have  not  been  able  to  obtain  them  for 
publication,  but  have  been  courteously  furnished  with  the 
following  extract  from  Webster's  letter  to  Brown,  of  Sep- 
tember 20,  1818:  "I  reed,  yours  from  Albany,  &  to-day 
that  from  Keedsboro'.  You  are  probably  at  home  by  this 
time  and  will  find  one  from  me.  I  am  particularly  gratified 
with  the  state  of  things  where  you  have  been. 

' '  I  never  doubted  for  a  moment  on  which  side  of  such  a 
question  C.  K.'s  mind  must  ultimately  rest.     I  have  studied 


BROWN    TO    WEBSTER.  271 

him  (in  his  works)  many  years,  and  I  think  I  understand 
him.  He  has  great  talents,  great  legal  learning,  &  great- 
ness, firmness,  &  independence  of  mind.  His  opinion  will 
have  weight  wherever  it  is  kno^vn. 

"  I  hope  he  may  express  himself  as  occasion  may  offer." 

Dart.  Coll.  Sept.  19,  1818. 

My  Dear  Sir, — I  have  received  your  favor  of  the  6th,  and 
have  seen  Mr.  Marsh. 

In  regard  to  the  reprinting,  I  have  some  little  doubt,  whether 
the  benefit  to  be  expected  would  render  the  measure  expedient, 
considering  how  soon  it  may  be  hoped  the  volume  will  appear. 
The  very  scarcity  of  the  argument,  &  the  half-secret  &  cautious 
manner  of  the  distribution,  stimulate  curiosity,  &  add  somewhat 
to  the  preciousness  of  the  document.  It  has  ah'cady  been,  or 
shortly  will  be,  read  by  all  the  commanding  men  of  New  England  & 
New  York ;  and  so  far  as  it  has  gone  it  has  united  them  all,  with- 
out a  single  exception  within  my  knowledge,  in  one  broad  and 
impenetrable  phalanx  for  our  defence  &  support.  N.  E.  &  N.  Y. 
are  gained.  Will  not  this  be  sufficient  for  our  present  purposes? 
If  not,  I  should  recommend  the  reprinting.  And  on  this  point  you 
are  the  best  judge.  I  prevailingly  think,  however,  that  the  cur- 
rent [of]  opinion  from  this  part  of  the  country  is  setting  so  strongly 
towards  the  South  that  we  may  safely  trust  to  its  force  alone  to 
accomplish  whatever  is  necessary.  I  acknowledge  I  am  sanguine, 
and,  on  that  account,  ought  to  distrust  myself.  I,  therefore,  con- 
clude this  topick  by  saying,  if,  in  your  opinion,  any  thing  more 
needs  to  be  done  in  enlightening  the  more  eminent  of  the  profes- 
sional men  of  the  country,  let  a  hundred  or  two  copies  be  struck 
off  without  delay.  But  even  in  that  case  I  should  recommend  the 
principle  of  selection  in  the  distribution  ;  for  I  would  not  allow 
the  argument  to  be  common,  until  it  is  to  be  sold. 

Prof.  Adams  has  mentioned  your  plan  for  funds  and  I  hope  you 
will  not  give  it  up  (unless  a  better  one  presents)  on  account  of  the 
free  remai-ks  of  our  excellent  friend  Mr.  Marsh.  He  mentioned 
that  he  discouraged  a  loan  —  the  favor  must  be  a  gift.  I  agree 
with  him,  so  far  as  this  mode  can  be  made  to  succeed  ;  so  far  as 
it  cannot,  the  other  is  unquestionably  to  be  seized  with  thankful- 
ness. 


272  DARTMOUTH  COLLEGE  CAUSES. 

It  is  true  we  shall  have  to  struggle  hard,  even  after  we  have 
gained  the  victory  in  the  legal  combat.  And,  therefore,  it  is  our 
duty  to  provide,  in  the  present  exigency,  which  presents  a  tan- 
gible object  to  the  community,  for  future  emergencies.  I  do  not 
yet  despair  of  obtaining  all  that  may  be  needed,  as  a  gift.  We 
can  at  least  pull  on  this  string  for  two  or  thi-ee  months.  Will  it  not 
then  be  best  to  suspend  operations  for  a  loan  for  the  present? 
When  January  comes  we  shall  know  how  we  stand,  &  what  more 
is  necessary,  and  we  can  then  act  according  to  circumstances. 

I  have  received  an  answer  from  Mr.  Hopkinson.  He  consents 
to  prepare  his  part  of  the  argument  for  publication,  and  I  presume 
it  will  be  ready  in  season.  The  book  must  be  out  at  the  earliest 
possible  day  after  the  opinion  of  the  court  can  be  procured.  Will 
it  be  best  to  print  in  Boston  ?  What  printers  shall  be  employed  ? 
Will  it  be  best  to  have  proposals  issued  beforehand?  What 
terms  can  be  secured?  —  these  are  inquiries  which  have  occurred  to 
me,  &  which  I  will  thank  you  to  consider  at  some  convenient  time. 

We  are  under  obligations  to  Dr.  Kirkland  for  his  civilities  & 

proffers  of  aid.     I  have  no  question  of  his  sincerity ;  and  I  believe 

he  exercises  no  more  caution  than  other  men  in  eminent  stations 

have  thought  proper  to  observe.     We  will  avail  ourselves  of  Ms 

kindness  at  such  time  &  in  such  manner  as  may  seem  best. 

I  am,  my  dear  sir,  as  ever. 

Yours, 

Fkancis  Brown. 
Hon.  D.  Webster. 

We  have  followed  the  italics  of  Mr.  Brown.  To  him  all 
the  secrets  of  the  counsel  were  committed.  It  is  quite 
obvious  that  in  this  letter  he  personates  the  three  judges 
geographically,  and  equally  so  that  he  regarded  two  of 
them  —  all  that  were  needed  —  as  "  gained  ' '  to  the  side  of 
the  College,  and  that  Johnson  was  favorably  inclined. 

In  his  letter,  written  from  the  College  to  Mr.  Webster, 
dated  September  26,  1818,  Mr.  Brown  says  :  "  When  any- 
thing new  occurs,  of  any  importance  to  the  common  con- 
cern, I  think  proper  to  apprize  you  of  it.  I  am  not,  however, 
mthout  fear,  that  I  shall  weary  you  by  my  letters. 

"  Dr.  Perkins  has  said,  since  his  return,  that  he  borrowed  a 


BROWN   TO    WEBSTER.  273 

copy  of  the  argument,  under  the  restriction  of  not  allowing 
it  to  go  out  of  his  hands,  of  not  copying  it,  &g.  ,  with  liberty 
to  keep  it  a  few  days  or  weeks.  But,  he  observed,  as  some 
parts  of  it  have  been  copied,  by  some  of  his  friends  at  a  dis- 
tance, &  will  be  used  on  their  side,  he  thought  best  to  return 
the  argument  to  you  next  morning,  after  taking  it,  lest  you 
should  suspect  hi7n  of  having  made  the  copies.  He  added, 
that  he  had  obtained  the  abstracts.  Some  uncharitable 
individuals  think  it  possible  the  friends  at  a  distance  were 
friends  in  Boston.  What  use  is  to  be  made,  he  did  not  say  ; 
whether  they  are  to  be  published  in  the  newspaper  at  Con- 
cord, or  only  put  into  the  hands  of  counsel.  If  parts  are  to 
be  inserted  &  commented  on  in  their  papers,  unquestionably 
the  argument  ought  to  be  published  &  circulated.  We 
shall  see  how  this  is  shortly. 

"  At  Exeter,  as  I  learn,  they  are  going  to  attempt  to  show 
from  the  correspondence  of  Dr.  E.  Wheelock  that  he  con- 
sidered the  College  to  be  altogether  distinct  from  the  school; 
the  school,  to  be  sure,  being  u, private  charity,  —  the  College 
a  publich  institution,  &  on  a  very  different  foundation.  I 
presume  no  such  evidence  will  be  admitted.  If  it  should  be, 
the  trial  must  be  long,  &  it  is  impossible  to  conjecture 
what  may  be  shown. 

"In  the  attempt  which  they  will  make,  to  prove  this 
not  to  be  a  private  eleemosynary  corporation,  they  will 
probably  bring  in  the  lands  &  other  donations  given  by 
the  Leg.  of  N.  H.  May  it  not  be  of  some  consequence  to 
ascertain  these  grants,  &  obtain  copies  from  the  secy's. 
office? 

"  In  the  argument  of  the  cause,  I  also  learned,  they  will 
attempt  (probably  the  attempt  was  made  last  March  by  Mr. 
Wirt,)  to  show  a  distinction  between  the  universities  in 
Eng.  &  the  colleges  founded  loithin  them  —  the  latter  being 
admitted  to  be  charities,  the  former  not,  but  designed  for 
the  purposes  of  regulation,  government,  &c.,  and  Dart 
College  resembles  the  univties.  rather  than  the  colleges  in 


274  DARTMOUTH  COLLEGE  CAUSES. 

Eng,  Ergo,  the  Leg.  has  aright  to  interfere.  This,  I  doubt 
not,  has  occurred  to  you.  They  will  make  it,  I  think,  their 
great  point. 

"  As  to  the  question,  '  Who  shall  argue  th6  cause  on  our 
side  ? '  I  answer  very  decisively,  yourself,  unless  reasons 
should  occur  against  it,  which  I  have  not  yet  thought  of. 
At  present  I  think  I  should  not  be  willing  to  trust  it  in  any 
other  hands. 

' '  I  have  the  fullest  confidence  in  our  counsel  at  Exeter  ; 
at  the  same  time  I  should  rejoice  should  you  find  it  conven- 
ient to  be  there.  They  will  endeavor  to  bring  in  as  many 
things  as  can  possibly  be  found  to  give  to  D.  C.  the  appear- 
ance of  being  what  it  is  not,  an  institution  of  a  public  char- 
acter, such  as  it  is  admitted  the  govt,  may  control." 

This  letter  shows  that  it  was  sent  by  a  private  messenger, 
Mr.  Kent,  directed  to  Webster  at  his  old  home,  "  Salisbury, 
or  Concord." 

The  Albany  conferences,  as  well  as  a  portion  of  Judge 
Parker's  letter,  undoubtedy  had  their  inspiration  in  the  fer- 
tile brain  of  Marsh. 

None  knew  the  impropriety  of  the  means  resorted  to  for 
influencing  the  minds  of  certain  judges  better  than  Marsh  ; 
but  he  probably  justified  himself  in  taking  such  steps 
because  of  the  course  which  he  understood  had  been  followed 
by  Story. 

We  have  been  unable  to  obtain  his  letters,  but  his  views 
in  this  respect  appear  distinctly  enough  in  the  letter  to  him 
from   his    associate   counsel,  Hopkinson,    which  we    quote 

entire  : — 

Washington,  Dec.  31,  1817. 

Dear  Sir,  — I  received  your  favor  of  the  19th  inst.  enclosing  a 
note  for  Mess.  Gales  and  Seaton  which  I  shall  deliver  without 
delay;  and  trust  it  will  have  the  effect  to  induce  them  to  keep 
their  press  silent  in  a  matter  of  so  much  importance,  and  which  is 
to  come  before  the  highest  tribunal  in  the  nation  for  decision. 
Altho.  the  attempts  of  the  defts  in  this  case  to  excite  a  pi-eju- 
dice  in  the  public  mind  by  newspapers,  and  party  representations, 


HOPKINSON    TO    MARSH.  275 

is  vile  and  unjust,  it  is  likely  they  will  be  able  to  produce  less 
effect,  by  these  means,  upon  a  court  than  a  jury. 

The  situation  in  which,  if  you  are  not  misinformed,  Judge  Story 
has  placed  himself  is  much  more  alarming  to  us  —  and  so  disreput- 
able to  him  should  he  sit  in  the  case  —  that  I  confess  I  am  inclined 
to  believe  that  your  information  in  this  respect,  must  be  mistaken, 
should  it  however  be  otherwise  and  he  is  about  to  sit  as  j  udge  in  a 
cause  in  which  he  has  been  a  feed  counsellor,  I  should  have  no  hesi- 
tation in  resorting  to  any  legal  and  proper  means  to  prevent  such 
an  abuse  of  power  and  office.  The  influence  of  the  judge  with  the 
court  in  general  cases,  is,  I  think,  considerable  ;  and  will  probably 
be  very  great  in  one  like  the  present.  If,  therefore,  the  judge  has 
committed  himself  in  the  way  you  mention,  it  will  never  do  to 
hazard  so  important  a  case  on  a  question  of  delicacy  to  him.  As 
to  the  place  the  case  will  take  on  the  docket  and  the  probability  of 
reaching  it  at  the  ensuing  court,  I  can  only  say,  that  the  clerk 
enters  the  causes  as  the  records  come  to  his  hands,  and  would  not 
feel  or  indeed  be  authorized  to  vary  this  order,  and  judging  from 
past  experience  there  will  hardly  be  a  chance  of  reaching,  in  its 
regular  course,  your  cause  at  the  coming  term.  The  only  hope 
arises  from  the  nature  and  importance  of  the  case,  and  the  neces- 
sity of  obtaining  a  speedy  decision,  to  prevent  injury,  perhaps  ruin 
to  a  public  institution,  if  suffered  to  remain  another  year  in  a  state 
of  unsettled  controversy.  I  have  no  doubt  the  court  have  a  dis- 
cretionary power  over  the  docket,  to  give  preference  in  ver}'  extra- 
ordinary cases ;  and  it  seems  to  me  that  this  is  one  of  the  cases 
in  which  they  might  be  fairly  called  upon  to  exercise  it. 

I  fear  however  the  consent  of  botli  parties  would  be  required  for 
such  an  interposition.  I  rejoice  that  the  "poor  droves  of  cattle " 
however  improper  their  conduct,  have  been  relieved  from  prosecu- 
tions, which  would  have  reduced  them  to  ruin  and  want,  without 
adding  much  to  our  "overflowing  treasury,"  or  gratif3'ing  any- 
body but  those  who  prosecute  more  for  spite  and  profit  than  patriot- 
ism. We  have  had  an  unusually  busy  session  in  Congress  for  so 
early  a  part  of  the  session,  the  new  members  have  been  very  dili- 
gent in  exercising  themselves  upon  old  soldiers,  war-worn  officers, 
and  Revolutionary  glories,  and  our  devotion  to  the  people  has  been 
shown  by  the  repeal  of  all  the  internal  taxes. 

Jos.   HOPKINSON. 


276  DARTMOUTH  COLLEGE  CAUSES. 

Soon  after  the  decision  of  the  College  causes  by  Judge 
Story,  Webster  visited  the  chancellor,  who  wrote  on  the  fly- 
leaf of  a  book,  now  in  our  possession,  the  following  memo- 
randum: "August  2d,  1819.  A  sister  of  the  author  of 
these  volumes  [Mrs.  Lee],  in  company  with  D.  Webster  & 
his  wife,  was  at  my  house  in  Albany  and  dined  there." 


CHAPTER    XL 

THE  CAUSES  IN  THE  CIRCUIT  COURT  —  SPECIAL  VERDICTS 
AND  CORRESPONDENCE  — ABSTRACT  OF  DOCUMENTARY  EVI- 
DENCE—FARRAR'S  REPORT  —  WHEATON'S  REPORT  MADE  UP 
FROM  FARRAR'S  — ALLEN  AND  WHEELOCK  V.DARTMOUTH 
COLLEGE  — OLD  TRUSTEES  SEEK  TO  DISREGARD  THE  DECI- 
SION OF  THE  SUPREME  COURT,  AGAINST  JUDGE  SMITH'S 
ADVICE. 

The  following  correspondence  explains  some  of  the  per- 
plexities of  the  plaintiffs  in  instituting  the  suits  in  the  Cir- 
cuit Court,  and  in  framing  the  special  verdicts.  The 
abstracts  of  the  defendant's  documents  (omitting  the  letter 
of  Dartmouth,  of  April  25,  1771)  were  prepared  by  Mr. 
Brown.  Brown,  in  his  letter  to  Farrar,  of  February  19, 
1818,  says:  "The  trustees  are  together.  They  have  re- 
solved to  commence  suits  without  delay.  Will  you  have  the 
goodness  to  procure  half  a  doz.  blanks  from  Mr.  Freeman, 
[the  clerk  of  Story's  court,]  &  to  forward  them  to  me 
immediately  by  mail  ?  ' ' 

Appended  to  the  above  is  the  following  note  from  Marsh 
to  Farrar :  "  It  is  doubtfull  whether  the  English  action  of 
ejectment  ^^^ll  answer  the  object  expected  from  it,  the  con- 
fession of  lease,  entry  and  ouster  will  not  superseed  the 
necessity  of  proving  the  Deft  in  possession  of  the  prem- 
ises—  such  was  the  understanding  and  practice  in  Vermont, 
and  such  is  supposed  to  be  the  law  in  England. 

"  There  has  never  been  any  thing  in  practice  in  Vermont 
analogous  to  the  writ  of  entry  in  England. — Is  anything 
intended  by  the  expression  in  your  letter  "  a  writ  of  entry,''' 
different  from  the  process  in  use  in  this  State  vulgarly  called 
ejectment  ?     If  so  has  this  form  of  proceeding  been  common 

(277) 


278  DARTMOUTH  COLLEGE  CAUSES. 

ill  your  part  of  the  State?  nothing  is  known  of  it  by  the 
lawyers  here, — can  you  furnish  a  form  of  the  writ?  —  I 
make  these  enquiries  partly  for  want  of  time  to  investi- 
gate so  far  as  would  be  necessary  to  introduce  with  safety  a 
form  of  writ  entirely  new  in  practice  in  this  State  and  the 
State  of  Vermont,  and  the  more  so  as  we  wish  to  commence 
these  suits  immediately, — who  is  the  marshall  and  has  he 
any  deputy  in  the  western  part  of  the  State  ? ' ' 

The  following,  from  Farrar  to  Brown,  explains  Mr.  Ma- 
son' s  views  :  ' '  Since  you  have  left  this  town  I  have  conferred 
with  Mr.  Mason  concerning  the  actions  most  hkely  to  suc- 
ceed in  raising  the  College  question  before  the  Circuit  Court. 
He  recommends  the  following  : 

"  1st.  An  action  of  trover  for  the  College  Library.  To 
prepare  the  way  for  this  action  there  must  be  an  actual  and 
bona  fide  sale  for  a  valuable  and  full  consideration  to  a  citi- 
zen of  Vermont.  The  bill  of  sale  should  be  executed  and 
the  books  formally  delivered  at  some  time  when  the  library 
is  accessible  by  an  authorized  agent  of  the  Trustees  in  the 
manner  mentioned  when  you  were  here. 

"  The  purchaser  may  then  offer  or  attempt  to  take  pos- 
session &  carry  the  books  away,  which  he  may  do  if  no 
objection  is  made  and  then  proceed  in  the  same  manner  with 
the  apparatus  &c. 

"  But  if  objections  are  made  he  may  then  commence  his 
action  against  the  librarian  or  person  or  persons  having 
the  actual  possession  and  custody  of  the  books ;  as  a 
recovery  in  trover  will  change  the  property  and  vest  it  in 
the  Deft  it  will  be  best  to  hold  in  bail  in  a  sum  equal  to 
the  value  of  the  Library.  The  purchaser  agent  and  wit- 
nesses who  go  into  the  Library  for  the  above  purpose 
should  all  be  citizens  of  another  State  so  that  if  the  Univ. 
should  become  Phit^  and  sue  them  as  Trespassers  the 
action  may  be  removed  to  the  Cir.  Court. 

"2d.  A  writ  of  entrv  for  some  College  land  of  the  value 
of  $2,000.00  against  a  tenant  who  has  forfeited  his  lease  by 


mason's    views FARRAR    TO    BROWN.  279 

non-payment  of  rent.  For  this  purpose  there  must  be  an 
entry  and  a  conveyance  to  a  citizen  of  Vermont  on  a  bona 
fide  sale  for  a  valuable  and  adequate  consideration. 

"These  are  the  actions  which  Mr.  Mason  thinks  most 
likely  to  answer  the  purpose  of  raising  the  question,  and 
which  he  would  not  have  omitted  for  the  sake  of  trying 
experiments  with  an}''  other. 

' '  But  in  addition  to  these  he  thinks  it  would  be  well  to 
try  some  actions  for  the  last  granted  township  of  wild  land 
in  the  north  part  of  this  State,  a  proper  conveyance  to 
be  made  as  in  the  other  cases  to  a  citizen  of  Vermont  and 
the  actions  he  would  bring,  are  —  1st,  a  writ  of  entry 
directly  against  the  Trustees  of  Dart  Univy  as  a  Corpo- 
ration, and  2d,  a  writ  of  ejectment  in  the  English  form 
against  anybody  as  casual  ejector  who  would  agree  to  be 
Deft  &  give  the  requisite  notices  to  Trustees  of  the  Univ'y. 
This  last  action  he  would  bring  on  the  idea  that  the  Trustees 
of  the  University  might  be  compelled  to  confess  lien,  entry 
&  ouster,  and  take  upon  themselves  the  defence  with  the 
form  of  proceeding  in  this  action.  Mr.  Marsh  is  more  familiar 
than  the  gentlemen  of  the  profession  in  this  State  and  of 
course  better  able  to  judge  of  the  chance  of  its  success." 

In  his  letter  to  Farrar,  of  February  27,  1818,  Marsh  says  : 
"Your  letter  to  Mr.  Brown  of  the  7th  instant  is  now 
before  me  —  I  wrote  you  a  note  a  few  days  since  in  a  letter 
from  Mr.  Brown,  —  since  that  time  I  have  paid  what  atten- 
tion I  have  been  able  to  the  subject  of  the  letter  as  to  the 
various  actions  Mr.  Mason  proposes  to  have  bro't  in  order 
to  bring  our  controversy  properly  before  the  court,  we  may 
perhaps  succeed  in  planting  an  action  of  trover  in  the  man- 
ner proposed  —  there  is  much  more  dilBculty  in  instituting 
the  actions  proposed  for  the  recovery  of  real  property  — 
we  can  scarcely  find  any  one  piece  of  real  property  which 
can  be  sold  of  the  value  of  $2,000,  —  and  of  which  any  one  is 
in  possession  in  such  manner  that  an  action  ynW  lie  against 
the  tenant.     A  greater  difficulty  however  at  present  is  the 


280  DARTMOUTH  COLLEGE  CAUSES. 

form  of  action  proposed,  — the  writ  of  entry  has  not  been 
in  use  in  this  State  since  its  existence,  nor  is  it  I  believe  in 
common  use  in  atiy  of  the  neighboring  States.  It  will  also 
be  remembered  that  for  a  great  number  of  years  it  has  been 
almost  unknown  in  the  English  practice,  —  so  much  so  that 
in  no  book  of  entries  within  my  reach  is  any  thing  like  a 
precedent  to  be  found.  Bohun's  Institutio  Legalis  and  Lil- 
ly's Entries  are  the  oldest  books  of  precedents  which  I  have 
it  in  my  power  to  consult. 

"It  is  proposed  also  to  bring  a  writ  of  entry  directly 
against  the  trustees  of  the  University  for  the  last  granted 
township  of  wild  land  in  the  northern  part  of  New  Hamp- 
shire and  also  an  Ejectment  in  the  English  form  against 
some  casual  ejector  for  the  same  lands.  From  what  oppor- 
tunity I  have  had  to  examine  the  authorities  since  this  sub- 
ject was  proposed  I  do  not  find  that  a  writ  of  entry  will  lie 
to  try  the  title  to  land  of  which  no  one  has  ever  been  in  pos- 
session, nor  will  ejectments  in  the  English  form  answer  bet- 
ter in  such  case  —  the  confession  of  lease,  Entry  and  Ouster 
will  neither  aid  the  Plffs  title  or  give  him  a  cause  of  action 
when  in  fact  he  has  none  —  the  trespass  and  ejectment  must 
still  be  proved  against  Deft  and  even  where  we  proceed  in 
ejectment  as  for  a  vacant  possession ^  still  it  must  be  shown 
that  the  tenant  has  been  at  some  time  in  possession,  and  in 
the  State  of  New  York  it  has  been  decided  that  the  rules  of 
proceeding  in  ejectment  as  for  a  vacant  possession  have  no 
applicability  in  this  recently  settled  country. 

' '  In  this  last  case  also  it  is  necessary  to  make  an  actual 
entry  on  the  premises  and  there  seal  and  deliver  a  lease  to 
the  plaintiff.  It  is  unnecessary  to  say  that  this  cannot  be 
done  at  this  season  on  any  part  of  the  White  Hills.  By 
this  last  case  I  mean  when  we  proceed  as  for  a  vacant  pos- 
session. In  all  other  cases  in  ejectment  a  declaration  must 
be  made  to  each  tenant  in  possession  and  affidavit  of  this 
fact  must  be  made  before  the  court  will  proceed. 

"  I  fear,  my  dear  sir,  that  we  shall  too  much  try  your  & 


mason's    views MARSH    TO    FARRAR.  2^1 

Mr.  Mason's  patience.  I  have  no  inclination  to  try  '  ex- 
periments,' but  want  assistance  to  surmount  real  obstacles 
in  our  progress.  I  know  that  Mr.  M.'s  avocations  arc 
numerous  and  pressing,  and  wish,  therefore,  to  make  him 
as  little  trouble  as  possible. 

"  If  we  can  prepare  the  conveyances  after  having  provided 
purchasers,  will  it  not  be  expedient  that  writs  should  be  made 
by  you  or  Judge  Smith  ?  Can  you  inform  me  in  Avhat  way 
bonds  are  put  in  for  costs  of  prosecution  in  the  Circuit  Court 
in  your  circuit  ?  In  this  circuit  there  is  a  rule  of  court  that 
the  pl'ff  in  every  action  shall  file  a  bond  with  and  to  the 
acceptance  of  the  clerk  of  the  court  in  the  sum  of  two  hun- 
dred dollars  on  the  return  of  the  writ  for  the  security  of  cost 
to  Deft." 

The  following,  written  by  Mr.  Brown,  is  appended: 
**  You  see  what  Mr.  M.  has  wi-ittcn.  Dr.  Hatch  will  either 
hand  you  this,  or  will  send  it  by  mail,  calculating  to  call  in 
two  or  three  days  afterwards.  He  has  purchased  some  land 
of  Mr.  Olcott,  as  agent  for  T.  of  D.  Coll.  I  believe  after 
what  Mr.  M.  writes,  it  will  best  for  you  (consulting  with 
INIr.  Mason,  of  course)  to  make  the  writ,  i.  e.  in  this  suit  to 
be  instituted  by  Dr.  H.  Other  suits  will  be  commenced  in 
due  time.  In  the  Hall  (so-called)  there  is  no  proper  tenant 
at  this  time  —  a  widow  woman  occupies  a  room  or  two.  But 
Mr.  Hutchinson  is  the  Inspector.  His  business  is  to  Ijeep 
the  keys  —  to  let  rooms  —  to  put  persons  in  possession  — 
&  I  beheve  he  always  has  the  keys  commanding  the 
entrance  into  the  house,  —  could  the  inspector  be  sued  in 
ejectment?  Has  he  the  possession?  Give  your  opinion  & 
Mr.  M.'s,  if  you  please.  I  wish  you  to  say  nothing  to  Dr. 
Hatch  about  the  Library.  That  business  will  require  a  little 
time.  It  is  in  train,  but  it  must  not  take  air.  Mr.  W. 
writes  from  Washino;ton  that  the  aro-ument  will  be  heard 
this  term.  Vacation  closes  to-morrow.  Twenty  students 
already  on  the  ground,  or  nearly  that  number." 

On  the  margin  of  the  first  page  of  this  letter  is  the  follow- 


282  DARTMOUTH  COLLEGE  CAUSES. 

mg,,written  by  Mr.  Brown  :  "  As,  after  all,  it  may  be  expe- 
dient to  sue  for  the  lands  N.  of  the  White  Hills,  I  wish  you 
should  write  to  Mr.  Marsh  as  largely  as  you  can." 

In  his  letter  to  Farrar,  of  December  7,  1818,  Judge 
Smith  says :  "  The  first  leisure  moment  after  my  return 
from  the  circuit  I  set  myself  diligently  to  work,  as  myman- 
ner  is,  to  revise  the  sjDecial  verdicts  in  Coll.  causes.  I 
framed  one  for  Marsh  v.  Allen  et  a.  — When  I  was  ready  to 
submit  them  to  Mr.  Sullivan  the  bird  had  flown  towards  the 
rising  of  the  sun,  and  did  not  revisit  the  western  hemisphere 
till  10  days  ago.  Two  days  after  that  event  I  gave  him  the 
special  v^ —  Pierce  v.  D.  U.,  &  Marsh  v.  Allen  et  a.  —  with 
the  pleas  common  rule  form  of  agreement  to  be  signed  by 
counsel  &  some  minutes  of  slight  alterations  in  the  verdicts. 
These  you  will  see,  no  doubt,  in  Mr.  Ich.  B.'s  poss'on.  I 
requested  Mr.  S.  to  examine,  &  correct,  &  say  what  addi- 
tions D.  U.  proposed,  expressing  with  all  a  wish  that  as  time 
pressed  he  would  at  an  early  day  be  ready  to  close  the  mat- 
ter. I  have  not  heard  from  him  since.  He  has  doubtless 
been  to  Portsmouth  ;  at  any  rate  has  sent  the  papers  to 
I.  B.,  &c.  He  spoke  of  adding  E.  W.'s  will.  Quere,  in 
that  case  would  it  be  advisable  to  add  any  new  matter  on 
our  part,  as  the  fact  that  John  was  not,  &  Rodolphus,  then 
alive,  was  the  eldest  son,  &  most  loorthy,  &c. 

"I  send  verdict  Hatch  v.  Lang  —  consult  with  Mr. 
Mason,  as  you  will  in  the  whole  matter,  and  send  me  answer 
to  my  queries. 

"  Hatch  V.  Lang. 

"1.  Query.  As  to  L.  who  is  tenant  for  years  only 
pleading  null  disseisin  —  the  writ  charges  him  with  a  dis- 
seisin. 

"2.  Spec.  V.  states  that  L.  entered  under  lease,  and  was 
actually  possessed,  &  ever  since  hath  continued  in  posses- 
sion, &c. 

'<  Perhaps  this  is  well  enough  ;  the  entry  by  D.  Coll.  or 
H.  does  not  imply  expulsion. 


SPECIAL    VERDICTS JUDGE    SMITH.  283 

"3.  Should  not pu7'pose  of  entry  by  D.  Coll.  viz.,  to  put  an 
end  to  lease  &  extinguish  all  the  right  &  title  of  L.  under 
the  same,  &c.,  be  stated?  See  2  A  Blac  61,  entry  to 
avoid  a  fine. 

"  4.  Should  not  jury  find  entry  by  L.  on  Hatch,  &  expul- 
sion as  stated  in  the  writ?     This  seems  necessary. 

"  Pierce  v.  D.  U. 

"The  special  v*^  I  think  should  state  Tr.  D.  U.  guilty, 
and  not  poor  G.  —  the  issue  is  so  — the  v.  whether  gen.  or 
spec,  must  find  the  issue.  — In  some  forms  of  spec,  verdicts 
in  ejectment  there  was  no  casual  ejector, — the  writ  was 
served  on  the  real  tenant  as  it  always  may  be. 

"  Marsh  v.  Allen  et  a. 

"  Should  not  entry  be  made  before  plea  that  Tr.  D.  U.  at 
their  request  were  admitted  to  defend,  and  they  with  Allen 
et  a.  plead  A.  et  a.  not  guilty? 

"  And  should  not  spec.  v.  state  that  A.  et  a.  entered  by 
the  special  order  &  command  of  Tr.  of  D.  U.  and  ejected 
Marsh? 

' '  And  in  all  these  spec .  v'  would  it  not  be  well  to  state 
value  &  citizenship  of  parties,  as  in  3  Wheat.  10? 

"  Perhaps  not  essential. 

"These  hints  are  all  that  occur  to  me.  I  suppose  the 
writs,  &c.,  are  in  the  clerk's  office;  file  the  subpoenas. 
Our  final  deeds,  records,  &c.,  need  not  be  filed ;  return  me 
in  due  time  those  now  sent. 

"  I  am  now  functus  officio.  — I  cannot,  at  any  rate,  go  to 
Portsmouth ;  Mr.  M.  and  you  must  do  all  there. 

"Please  return  the  verdict  H.  v.  L.  to  me,  unless  you 
obtain  R.  J.'s  signature  at  P. 

"  Mr.  Freeman  will  require  some  time  to  make  out  papers 
for  Washington . ' ' 

In  his  letter  of  December  11,  1818,  to  Judge  Smith,  Mr. 
Farrar  says  :  "  Since  I  received  your  letter  until  this  day, 
Mr.  Mason  has  been  out  of  town.  I  have  to-day  consulted 
him  in  regard  to  the  spe.  v^  He  thinks  the  one  in  H.  v. 
L.  is  right  in  all  particulars,  but,  if  wrong  in  any  matter 


284  DARTMOUTH  COLLEGE  CAUSES. 

of  form,  the  easiest  way  to  cure  it  is  to  add  the  broad 
agreement.  As  to  it  and  24th  quereys  he  says  that  L.  by 
not  pleading  his  tenantcy  for  years  in  abatement  has  waived 
any  exception  on  that  ground,  and  by  pleading  nul  dissn. 
he  admits  the  disseizin  if  Plat,  has  a  title.  He  thinks  the 
purpose  of  entry,  &c.,  sufficiently  stated.  As  to  L.'s  con- 
tinuing in  the  actual  possession^  &c.,he  thinks  it  is  well 
enough  unless  spe.  v.  is  altered  in  the  4th  particular  so  as 
to  find  diszn.     If  this  is  alleged,  the  other  should  be  left  out. 

"  Pierce  v.  D.  U.  He  thinks  with  you,  that  spe.  v.  should 
be  agt.  D.  U.,  &  not  agt.  G. 

"  Marsh  v.  Allen,  &c.  He  has  had  no  time  to  look  into 
the  authorities  to  see  how  landlord  is  admitted  in  Engd., 
but  his  impression  is  that  it  should  be  done  as  you  pro- 
pose—  1st,  entry,  that  D.  U.  admitted,  &c.  ;  2,  then  let 
them  join  in  the  plea  that  A.  &  al.  not  guilty.  He  thinks 
also  that  spe.  v.  should  state  that  they  entered  by  command, 
&c.,of  D.  U. 

"  Mr.  M.  thinks  also  with  you  that  value  &  citizenship 
need  not  appear  in  the  spe,  v^ 

"  I  have  called  on  Ich.  B.  for  the  verdicts  in  the  two  last 
cases,  but  he  has  them  not,  &  says  he  has  not  seen  them. 
I  will  file  the  papers  you  have  sent  me,  agreeably  to  your 
directions. 

"If  there  should  be  anything  to  forward  this  business, 
which  I  can  do  after  the  papers  are  sent  down,  I  will 
attend  to  it  with  all  diligence. 

"I  wish  very  much  to  obtain  a  copy  of  the  spe.  v.  & 
record  in  D.  C  vs.  Woodward,  for  the  purpose  which  I 
have  named  to  you.  Will  you  have  the  goodness  to  loan 
me  your  manuscript  when  a  convenient  opportunity  occurs 
of  transmitting  it?     The  argument  I  trust  is  prepared." 

Upon  the  bottom  of  this  letter  is  the  following  indorse- 
ment in  the  handwriting  of  Mr.  Mason  :  — 

Mr.  Bartlett  has  called  with  the  papers  in  the  Coll.  cases.  I 
did  not  desire  or  expect  to  see  anything  more  of  them.  He  is 
very  urgent  to  have  the  newly  discovered  papers  admitted.     But 


PAPERS    IN    CIRCUIT    COURT FARRAr's    REPORT.         285 

I  believe  we  shall  get  rid  of  him  without  making  any  important 
admissions  except  that  his  office  copies  are  duly  authenticated. 

J.  M. 

11  Dec,  1818. 

This  letter  was  received  by  Judge  Smith,  December  16, 
1818. 

Farrar,  in  his  letter  to  Webster,  dated  January  8,  1819, 
says;  "Herewith  you  have  the  copies  of  the  three  cases 
certified  from  the  Circuit  Court ;  the  copy  of  an  agreement 
executed  at  present  only  by  Mr.  Mason  ;  a  copy  of  certain 
parts  of  Eleazer  Wheelock's  will ;  copy  of  a  grant  to 
trustees  of  D.  Coll.,  June,  1807,  and  a  copy  of  a  memorial 
of  Jno.  Wheelock,  in  the  name  &  behalf  of  said  trustees, 
June,  1805.  The  copy  of  the  letter  of  April  25,  1771, 
from  Ld.  Dartmouth  &  others,  with  Mr.  Allen's  affidavit, 
has  been  already  forwarded.  You  will  notice  a  provision 
in  Dr.  E.  Wheelock's  will,  that,  in  consequence  of  certain 
property  of  his  having  gone  to  the  benefit  of  the  Charity 
School,  it  is  charged  with  the  payment  of  an  annuity  to 
Ralph  Wheelock  &  C.  This  annuity,  I  understand,  has 
always  been  considered  as  due  from  the  College,  and  paid 
by  the  trustees.  There  is  a  provision  in  the  act  of  June, 
1807,  by  which  the  Legislature  reserve  to  themselves  the 
right  to  control  the  trustees  in  respect  to  the  appropriation 
of  the  income  of  that  grant.  This  grant  remains  unpro- 
ductive. 

' '  I  have  received  a  line  from  Pres*  Brown  respecting  our 
book,  and  have  conversed  with  Mr.  Mason  on  the  subject. 
The  Pres*  is  silent  in  regard  to  the  plan  of  it,  what  the 
introduction  shall  contain,  &c.  Mr.  Mason  is  decidedly 
of  the  opinion  that  there  should  be  none;  that  is,  that  the 
book  should  be  wholly  confined  to  the  law  or  judicial  his- 
tory of  the  case,  without  any  notice  of  the  ecclesiastical  or 
political  or  any  other  part  of  the  preliminary  dispute.  His 
reasons  are,  that  it  is  for  the  interest  of  the  Institution  to 
bury  any  recollection  of  this  dispute  as  soon  as  the  cause 


286  DARTMOUTH  COLLEGE  CAUSES. 

is  ended,  and  not  perpetuate  the  enmity  of  the  individuals 
or  of  the  party  by  putting  into  a  permanent  form  any  thing 
that  shall  compel  them  to  look  upon  their  own  iniquity. 
This  is  a  matter  that  you  and  the  President  must  decide, 
and  let  me  know  how  much  and  what  matter  the  book 
should  contain. 

"  Please  to  acknowledge  the  rec'pt  of  these  papers." 
It  will  be  noticed  that,  in  the  abstracts  made  by  Mr. 
Brown,  the  trustees  in  1782,  1808,  and  in  1812  termed  the 
institution  a  University ;  that  they  conferred  degrees  as 
such ;  that  Dr.  Wheelock,  in  his  last  will,  recognized  this 
"  Seminary  "  as  a  University,  as  well  as  in  the  instances  to 
which  we  have  already  alluded. 

ABSTRACTS  OF    DEFT'S  DOCUMENTS. 

No.  1.  E.  Wheelock's  "Narrative  "  &c.  from  1768  to  its  incor- 
poration with  D.  C.  &  removal  to  Han""  1771,  marked  with  a  refer- 
ence to  p.  26,  30  &  35,  where  are  passages  speaking  of  the  school 
as  a  separate  Inst'^  from  the  Col.  &  as  connected  with  the  Col  &c. 

No.  2.     Extracts  from  y°  Records  of  D.  C.  1  vol. 

"  1st.  Meet'g  held  at  Keen  Oct.  1770.  Whereas  &g  Pres't  pro- 
posed that  the  Board  should  exchange  200  a^  land  given  by  his  late 
Exc'y  B.  W.  to  this  Col  for  400  a®  given  to  the  Pres*  by  the  town 
of  Hanover. 

"  Meet'g  May  28,  1773,  Vote  of  thanks  to  Gov.  Coun^  &  Rep's 
for  grant  of  £500  for  building  new  Col. 

"Meet'g  Aug.  26,  1773,  Vote  to  receive  ye  400  acr^  in  lieu  of 
the  200  patented  to  y®  s^  Dr.  E.  W.  under  y*^  great  seal  of  this 
Prov.  by  his  Ex'y  J.  W.  Esq.  as  by  s'^  patent  date  Dec.  19  1771, 
&c. 

"  M'g  Oct.  22,  1770,  Vote  that  Pres*  employ  Surveyor  &c  to 
run  the  line  &  mark  &c  town  of  Landaff. 

"M.  Aug.  23,  1775.  The  several  classes  in  Col  &  Studt^  in 
Moor's  Charity  Sch^  preferred  a  petition  addressed  to  the  Hon' hie 
Trustees  of  D  Coll  &c. 

"  %  of  Lands  given  to  the  Col.  July  6,  1770,  B.  W^^  gave  500 
a^  in  H.  on  this.  Col  stands.  300  a«  of  which  was  by  patent  from 
his  Ex  I.  W'^'^  on  19  Dec.  1771  confirmed  to  the  Trustees  &c. 


defendant's  documents.  287 

"Meet'gSept.  20,  1782,  Resolve  styling  this  a  University  axid 
themselves  Trustees  of  the  University  of  Dartmouth,  &c. 

"  M'g  Aug.  1812,  Vote  to  confer  Deg  of  A.  B.  on  following 
members  of  this  University. 

"M'g  Dec.  23,  1788,  Vote  appt^  a  Com^'^'^  to  examine  into 
the  relation  of  Col  &  Sch^  objects  of  each  &  application  of  funds 
designated  for  particular  objects  &c. 

"  (M'g  Ma}"-  7,  1789,  consists  of  Preamble  &  Resolution  to 
which  refer. ) 

"  Meet'g  Feb.  1796,  App  of  Josia  Freeman  to  make  division 
with  the  Pres't  of  Moore's  School  of  the  township  of  Wheelock  & 
execute  &  receive  deed  of  partition. 

"M'g  Aug.  1801.  Pres*  W.  as  Pres*  of  Moore's  Ch*y  school 
proposes  to  the  Trustees  to  take  some  superintendence  of  the 
school,  that  they  audit  his  %^  &c.  Voted  to  comply  with  the  pro- 
posal. A  Com*^*^^  chosen  to  confer  with  the  Pres*  on  the  subject  & 
report  to  the  next  meeting. 

"M'g  Aug.  1805.  The  s*^  Com*®®  reported  at  the  last  session, 
that  the  Trustees  unite  with  the  Pres*  in  an  application  to  the 
Legislature  to  pass  an  act  so  far  explaining  &  extending  the  act  of 
Incorp^  of  s^  Insf^  as  to  enable  &  make  it  the  duty  of  the  Tr 
with  the  Pres*for  the  time  being  to  superintend  Moor's  School  &c 
which  rep*  was  at  this  session  referred  to  a  new  coram*®®  who 
reported  a  draft  of  an  act  &c.     Voted  to  accept  the  same. 

"  M'g  Aug.  1807.  Resolved  to  accept  the  trust  created  by  the 
act  of  June  18,  1807,  Moore's  School. 

"M'g  March  30,  1790.  Return  of  land  granted  1789.  Tract  8 
m^  square. 

",M'g  May  1789.  Vote  of  thanks  to  Pres*  Wheelock  for  his 
agency  in  obtaining  the  grant  of  8  miles  square  in  this  State  &  his 
agencies  in  Ver*  in  obtaining  township  of  6  m*  square  for  Col  & 
Moore's  Sc^ 

"M'g  Jan'y  7  1808.  Resolve  to  establish  Prof^P  of  Law  at 
this  University  as  soon  as  adequate  means  shall  be  furnished." 

No.  5.  Letter  of  atty  E.  W.  to  Nath'  Whitaker  to  receive 
money  for  the  use  of  an  Indian  Ch^  school  and  to  supp*  mission- 
aries.    Date  May  6,  1766. 

No.  6.  Form  of  Deeds,  according  to  which  Donors  in  the 
origin  of  the  Col.  gave  lands.     "  Whereas  it  has  pleased  his  Ex>'  J. 


288  DARTMOUTH  COLLEGE  CAUSES. 

W*^  with  advice  of  his  Maj^'^  Council  for  the  instruction  of 
Indians  began  by  E.  W.  as  well  as  the  education  of  others,  to 
erect  &  constitute  a  Col.  by  the  name  of  D.  C.  &  by  Charter 
under  the  great  seal  to  endow  the  same  with  many  noble  privileges 
&  franchises  as  well  as  to  ivdvke  generous  donations  towards  a 
fund  &c.     Therefore,  in  consideration  &c." 

No.  10.  ExtractfromE.  W.'^willAp.  2,  1779.  "Andwhereas 
I  have  founded  on  my  own  tenement  and  at  my  own  expense  an 
Indian  Charity  School,  now  called  Moore's  Ch^  School  which  from 
small  beginnings  has  through  much  labour,  application  &  care  for 
more  than  20  years  last  past  under  a  series  of  most  signal  &  evident 
smiles  of  divine  providence  arisen  to  its  present  state  of  impor- 
tance &  appears  to  exhibit  a  fair  prospect  of  great  usefulness 
towards  the  christianizing  &  civilizing  the  natives  of  our  Ame'"^ 
wilderness  which  is  its  first  object,  &  of  conciliating  establishing 
&  perpetuating  a  firm  &  lasting  friendship  &  peace  between  all  the 
numerous  tribes  &  the  Am.  colonies  as  well  as  of  great  edification 
to  the  ch  of  God  among  the  Eng^  &  is  now  incorporated  by 
royal  charter  into  and  with  D.  C.  which  seminary  is  by  s"* 
charter  endowed  with  all  the  powers,  privileges  &  immunities  of 
a  University,  as  by  said  charter  may  fully  appear.  And  whereas 
it  appertains  unto  me  as  founder  &  proprietor  thereof  as 
well  as  by  grant  in  said  charter  to  dispose  of  said  school  & 
all  donations  and  grants  of  land  «fe  other  interests  any  way  given 
or  granted  for  the  benefit  &  use  of  s^  school  in  the  best  manner 
for  the  well  being  of  the  same  &  appoint  my  successor  in  the  office 
of  Pres*  of  s*^  seminary,  I  do  therefore  nominate  constitute  and 
appoint  my  son  J.  W.  to  be  my  successor  in  s*^  office  of  Pres*  of 
my  Ind  Chy  Sch'  &  D  Col  with  &  into  which  s^^  school  is  now  incor- 
porated &  to  him  I  give  &  grant  all  my  right  title  &  claim  to  s'^ 
Seminary  &  all  the  appurtenances,  interests  jurisdictions  power 
&  authority  to,  in  &  over  the  same  belonging  to  me  as  the  founder 
of  it  or  by  grant  in  the  charter  to  me,  or  by  any  other  ways  or 
means  whatsoever." 

No,  11.  Letter  from  Peter  Gilman  to  E.  W.  Date  Exeter  Feb. 
3,  1770.  "His  Ex^  Gov.  W.  having  appointed  me  in  the  charter 
for  D.  C.  one  of  the  Trustees,  I  was  much  averse  &c  knowing  my 
incapacity  «&;c  but  as  the  Gov  insisted  «fec  I  was  prevailed  upon  &c 
Col.  Phelps  informs  me  the  mode  of  fixing  upon  a  plan  for  the 


defendant's  documents.  289 

Col  is  for  the  trustees  to  write  their  minds  to  you  &c.  I  am 
unacquainted  &  no  doubt  you  will  fix  it  right  &c  but  should  think 
Haverhill  or  some  other  river  town  not  far  distant  most  suitable  &c. 

No.  13.  Grant  of  Landaff.  Date  Jan.  19,  1770.  Recorded 
Jan.  22,  1770. 

No.  14.  Grant  of  land  in  Hanover,  Dec.  19,  1771.  "Whereas 
we  did  erect  &  incorporate  a  College  &c  &  whereas  the  Tr  has 
begun  to  erect  buildings  on  a  tract  of  500  a.  ungranted  therefore 
give  &c  300  acres  part  of  s'^  500  a,  &  being  the  spot  on  which 
Col  stands  to  Trustees  and  in  consideration  &c  give  &c  the  re- 
maining 200  a.  to  E.  W.  all  which  on  certain  conditions." 

No.  15.  Report  of  Commissioners  to  examine  %s  of  Moore's 
Ind  Chy  Sch^  June  11,  1789,  finding  a  balance  of  £1,190,  10,  1 
st'^  in  favor  of  late  &  pres*  Dr.  W.  &  that  s^  expenditures  have 
been  for  the  use  of  the  sch'  &  not  for  the  benefit  of  the  Col. 

No.  16.  Vote  of  May  7,  1789.  This  is  the  same  as  in  No.  2, 
disclaiming  control  of  funds  of  Moor's  Sch'. 

No.  17.  Deed  of  trust  E.  W.  to  Earl  Dartmouth  &  al,  May 
31,  1768.  Recites  that  he  had  at  his  own  risk  and  expense  founded 
a  chy  sch^ — that  he  had  by  proper  instrument  under  seal 
appointed  his  successor  in  the  care  &  gov*^  of  the  same,  requiring 
him  &  his  successor  to  make  the  Tr  in  Eng  acquainted  with  his 
doings  &  the  doings  of  the  Tr  in  America ;  that  in  the  same 
instrument  he  had  appointed  7  other  gentlemen  with  his  successor 
to  be  Trustees  here,  authorizing  them  to  confirm  the  appointment 
of  his  successor  or  choose  one  of  their  own  number  in  his  stead ; 
fill  vacancies  in  their  own  number  —  fix  laws,  rules  &  orders  for 
the  government  &c.  Therefore  appoints  Earl  Dartmouth  &  8 
others  to  be  Trustees  in  Eng'^  &  grants  to  them  all  property 
received  or  to  be  received  in  Eng"^  for  the  use  spec**^.  Author- 
izing them  to  disapprove  of  his  successor  &  in  case  of  a  new  nomi- 
nation to  be  agreed  upon  by  both  boards  &  a  negative  on  all 
proceedings  if  here  —  to  fill  vacancies  in  their  own  number.  And 
binds  himself  not  to  alter  this  plan  without  their  consent,  &c. 

No.  18.  Grant  of  land,  8  m^  square,  Feb.  5,  1789,  and  $900 
June  15,  1805. 

No.  19.  Examination  of  Pres*  W.'s  %s  of  Moor's  School  by 
comm**^®  of  Trustees  July  21,  1805  ;  balance  in  favor  of  the  Pres* 
$1,869.75. 

19 


290  DARTMOUTH  COLLEGE  CAUSES. 

No.  21.  Letter  of  Earl  Dartmouth  &  als  to  E.  W.  Api  25, 
1771,  warning  him  not  to  apply  the  funds  to  the  use  of  D.  C.  but 
to  educate  Indians,  &  maintain  missionaries  &c.  See  whole 
letter. 

No.  22.  Letter  from  E  W  to  Govr  J  W^^,  Api  25th  1770. 
Hoped  to  meet  him  in  Coos  to  fix  upon  a  plan  for  the*  Col  to  his 
satisfaction.  Gov  life  &  sinews  of  the  whole.  Trustees  in  Con- 
necticut unwilling  to  take  any  part  in  determining  location  &c. 

No.  23.  Memorial  of  Tr  to  Legislature,  Nov.  24,  1804,  praying 
that  its  financial  concerns  may  be  investigated  by  a  com^^^  and 
considered  by  the  Legislature. 

No.  25.  Power  of  Att^-,  E.  W.  to  Earl  of  Dartmouth  &  others 
to  receive  in  trust  monies  &c  in  his  name  for  the  use  of  his  Indian 
school. 

No.  26.  Memorial  of  Tr  to  Legislature  Dec.  1,  1803,  saying 
among  other  things  ' '  as  individuals  they  have  no  interest  in  its 
success  &  prosperity  than  what  is  common  to  every  member  of 
the  Legislature.  As  visitors  of  the  Col  this  responsibility  is  more 
immediate  but  not  more  real  or  extensive  than  that  of  the  Legisla- 
tors of  the  State."  The  grants  collectively  under  the  former  & 
present  government  have  not  been  ultimately  beneficial  to  the  Col 
to  any  considerable  degree. 

No.  29.  Act  of  June  10,  1807.  Incorporating  the  Pres*  of 
Moor's  Ch^  Sch\  and  giving  the  Trustees  of  the  Col  certain  pow- 
ers in  relation  thereto. 

No.  30.     Will  of  John  Wheelock,  March  19,  1817. 

As  to  the  publication  of  Farrar's  report,  Putnam,  in  his 
letter  to  Farrar,  dated  at  Pittsfield,  Massachusetts,  October 
2,  1817,  says  :  "  Ever  since  I  left  you  I  have  been  more  and 
more  impressed  with  the  importance  of  printing  the  argu- 
ments on  the  Coll.  question.  T  have  conversed  much  with 
gentlemen  on  this  subject.  The  friends  of  the  Coll.  wish 
very  much  to  read  the  arguments  —  its  enemies  pretend  to 
desire  the  same.  I  think  it  important  to  print  for  many 
reasons  —  if  the  court  should  decide  against  the  Coll.  the 
public  by  reading  will  have  an  opportunity  to  judge  what 
they  7nust  be,  — if  they  decide  in  favor  of  Coll.  and  against 
the  University,  printing  the  arguments  will  make  the  case  go 


DOCUMENTS  —  FARRAR's    REPORT  —  DECISION.  291 

off  triumphantly  —  it  will  shame  &  confound  those  wise 
folks,  those  half-way  friends  that  Iihyg  pretended  to  doubt. 

"  I  think  there  can  be  no  doubt  al)Out  the  sale  of  the  book. 
My  brother,  who  is  with  me,  says  he  should  be  almost  will- 
ing to  be  responsible  that  every  student  of  Coll.  would  take 
a  copy.  I  think  a  subscription  paper  should  be  passed 
around, — particularly  at  Hanover. 

* '  I  hope  you  will  have  it  all  ready  for  me  to  read  by  the 
time  of  my  return. 

' '  I  calculate  to  be  at  Saratoga  Springs  about  two  days  — 
whether  I  shall  remain  there  will  depend  upon  the  state  of 
things  as  I  may  find  it. 

"I  think  my  health  is  improved — hope  that  God  will 
return  me  prepared  to  engage  in  my  great  labors.  Remem- 
ber me  in  your  prayers.  I  calculate  to  pass  down  to  the 
city  of  New  York  &  return  thro'  Conn.  &  Rhod.  Isl*^." 

In  his  letter  to  Farrar,  of  November  15,  1817,  Brown 
says:  "We  think  it  more  important  than  ever  that  the 
Exeter  argument  &  the  Plymouth  decision  should  be 
printed  in  a  book.  I  mentioned  the  subject  to  Judge  Smith 
at  Plymouth,  and  have  since  named  it  in  a  letter  to  him.  I 
believe  he  will  not  object.  Have  the  goodness  to  attend  to 
the  affair  without  delay,  &  let  Mr,  Lamson  superintend  the 
printing.  In  my  opinion,  the  sales,  if  the  copyright  is 
secured,  would  bring  a  handsome  profit ;  and,  by  the  way, 
might  not  this  be  turned  to  the  pecuniary  benefit  of  the  Col- 
lege? 

' '  The  decision  has  occasioned  the  defection  of  one  of  our 
students  only,  and  an  event  occurred  on  Tuesday  evening 
last,  which,  I  believe,  may  well  put  all  the  hopes  of  the 
Univ.  at  rest,  of  an  increase  of  their  numl^er  by  the 
diminution  of  ours.  This  was  an  attempt  to  seize  the 
Libraries  of  the  private  Societies  in  College.  Prof.  D,  & 
C,  Mr.  H.  Hutchinson,  Messrs.  Cook  and  Bissel  &  fifteen 
or  twenty  more  of  the  same  staniD  commenced  the  assault 
between  7  &  8  o'clock.     The  Frater.  were  then  in  meeting. 


292  DARTMOUTH  COLLEGE  CAUSES. 

They  immediately  adjourned,  about  one  half  repairing  to 
the  S.  F.'s  Lib.,  the  other  half  to  their  own.  In  five 
minutes  the  whole  body  of  the  students  had  collected.  A 
parley  ensued.  The  Professors  and  their  company  sur- 
rendered themselves  as  prisoners  and  were  conducted  into 
an  adjoining  room  until  the  Societies  had  removed  all  their 
books  to  a  place  of  safety.  The  party  were  then  conducted 
out,  one  by  one,  and  attended  by  one  or  more  of  the 
students  to  their  lodgings.  The  next  day  the  Frater.  pro- 
ceeded to  expel  a  member  of  the  Univ.  who  aided  the 
Prof  in  the  attack,  and  in  the  evening  the  S.  F.'s  expelled 
two  other  members  of  the  Univ.  &  summoned  their 
brothers  T>.  &  C.  to  answer  to  certain  charges  brought 
against  them.  These  gentlemen,  I  understand,  are  since 
expelled. 

"The  Univ.  seems  much  alarmed  for  its  credit.  Mr. 
Allen  has  issued  an  official  bulletin,  which  is  a  sort  of 
apologetick  statement,  designed  to  sooth  the  feelings  of  one 
part  of  the  community,  &  to  increase  the  violence  of  the 
other.  Prosecutions  are  threatened  by  the  Prof.  &  Co. 
I  have  some  fears  for  the  consequences.  In  the  meantime 
the  students  are  perfectly  regular,  &  attentive  as  usual  to 
their  studies.  The  Med.  Stu.  joined  heart  &  hand  in 
rescuins:  the  Libraries  from  the  hands  of  violence. 

*'A  somewhat  extensive  correspondence  has  become 
necessary  since  the  Plymouth  decision,  and  this  must 
excuse  the  hasty,  broken  manner  in  which  I  write." 

Judge  Smith,  in  his  letter  to  Mr.  Brown,  of  December 
17,  1818,  says:  "I  cannot  persuade  myself  an  argument 
on  Coll.  side  will  be  called  for.  When  all  is  over  there 
will  be  time  to  get  up  a  report  which  may  be,  I  think, 
compressed  into  1  vol 

"The  arguments,  excepting  always  Mr.  Webster's,  may 
be  abridged  in  bulk  without  suffering  any  loss  in  weight." 

By  an  arrangement  between  Webster,  IVIarshall,  Wash- 
ington, Story,  and  Wheaton,  Trustees  v.  Woodward  was 


I 


LIBRARY    TROUBLES FARRAR's    REPORTS.  293 

first  reported  by  Farrar  ;  and,  as  before  suggested,  Whcaton 
made  up  his  report  from  Farrar' s.  The  reasons  for  it  will 
appear  in  the  following  correspondence. 

Mr.  Brown,  in  his  letter  to  Judge  Smith,  of  January  4, 
1819,  says:  "Your  two  letters,  after  going  to  Hanover, 
reached  me  here  on  Saturday,  p.  m.,  and  in  a  few  minutes 
afterwards  Mr.  Mason  arrived  from  Portsmo.  &  gave  us  an 
account  of  what  had  been  done.  He  also  brought  copies 
of  the  papers,  which  had  been  agreed  to,  furnished  him  by 
the  diligent  pen  of  Mr.  Farrar, 

"  Anticipating  the  course  of  the  Univ.  in  this  business, 
I  had  employed  a  few  days  in  investigating  the  history 
of  M's  school,  &c.,  and  I  believe  I  had  ascertained  nearly 
every  fact  which  their  papers  bring  to  light.  All  the  *  nar- 
ratives '  I  could  obtain  (seven  in  No.),  including  all  except 
one  (of  1768),  I  brought  down  to  Mr.  W.,  as  also  the 
'  Memoirs  of  W.'  &  Dr.  J.  W.'s  '  Observations  on  Facts ' 
addressed  to  the  Vt.  Legislature  in  1807.  Mr.  W.  will 
take  these  with  him.  If,  on  my  return  to  Hanover,  I  can 
find  another  nar.  No.  4,  it  shall  be  sent  to  you. 

"As  to  the  printing,  I  have  named  the  subject  to  Mr. 
Mason,  &  requested  him  to  furnish  his  argument.  He 
says  he  will  think  of  it.  I  believe  he  will  find  no  difficulty 
in  consenting  to  the  general  wish.  I  have  requested  Mr. 
Farrar  to  undertake  the  superintendence  of  the  printing,  and 
to  insert  the  matter  which  may  be  proper  &  necessary  to 
make  out  the  case,  beginning  with  the  act  of  the  Legisla- 
ture, June,  1816.  Mr.  Farrar  will  confer  with  you  ;  and  I 
have  only  to  desire  that  you  will  have  the  goodness  to 
prepare  your  argument  as  soon  as  may  be  convenient,  as 
it  will  be  important  to  have  the  book  ready  for  delivery  as 
early  as  may  be  after  the  decision. 

"  My  health  has  not  sufiered  by  my  journey  to  this  place. 
I  trust,  with  proper  care  it  will  soon  be  reestablished. 

"  Our  controversy  has  been  long  &  close,  but  now  seems 
to  be  drawing  to  a  close.    Whatever  depends  on  men,  I  know, 


294  DARTMOUTH  COLLEGE  CAUSES. 

is  in  some  decree  uncertain ;  but  from  all  I  can  learn  here 
and  elsewhere,  I  have  a  great  degree  of  confidence  that  the 
cause  is  gained.  Should  this  be  the  event  (and  indeed 
whether  it  be  or  not),  we  shall  always  entertain  a  lively 
sense  of  obligation  to  those  gentlemen  who  have  '  stood  in 
the  gap '  &  so  nobly  sustained  the  contest.  And  may  we 
not  forget  our  obligations  to  him,  who  has  bestowed  on  our 
wisest  counsellors  their  talents,  &  by  whom  '  princes  decree 
justice.'  " 

This  letter  was  written  in  Boston,  and  received  by  Judge 
Smith  on  January  9,  1819. 

The  reference  to  what  had  been  done,  and  what  its  author 
had  learned  in  Boston  "  and  elsewhere,"  can  hardly  be  mis- 
taken. 

In  his  letter  of  February  4,  1819,  to  Farrar,  Webster 
says :  "I  suppose  all  the  judges  vnW  give  opinions  to  Mr. 
Wheaton  to  be  published  in  the  College  cause.  I  have  not 
seen  or  heard  any  but  the  chief  justice's,  but  I  have  no  doubt 
they  will  be  very  full  and  able.  I  think  it  would  be  very 
well  to  get  along  the  book,  but  there  is  one  difficulty  in  it, — 
these  opinions  are  the  property  of  the  reporter,  his  reward 
for  his  labors  is  principally  from  the  sale  of  his  book,  and 
this  case  ^\dll  make  a  principal  part  in  his  next  volume. 

"  Mr.  Wheaton  is  an  excellent  lawyer  and  in  all  things 
disposed  to  do  well  and  act  liberally,  —  still  he  might  think 
it  not  his  duty  to  give  gratuitously  copies  of  these  opinions 
as  the  sale  of  your  book  would  a  little  interfere  with  his .  I 
have  thought  of  offering  him  a  hundred  dollars  for  copies  of 
these  opinions  if  you  think  it  best  to  get  them.  This  will 
compensate  him  for  the  loss  of  a  sale  of  some  of  his  volumes. 

"  The  book,  if  printed  at  all,  must  be  printed  at  Boston, 
&  we  must  get  Judge  Story  to  inspect  the  proof-sheets  of 
the  opinions. 

"  I  suppose  we  can  get  the  book  out  by  the  first  of  June 
or  the  middle  of  May,  supposing  the  work  to  commence 
pretty  soon  after  my  return. 


farrar's  report.  295 

"  Please  let  me  hear  from  you  on  this  subject. 

"If  it  should  1)0  necessary  I  could  get  them  copied  here 
and  sent  on,  so  as  to  get  the  book  out  in  ApiHl  —  but  I  sup- 
pose May  is  just  as  well." 

Thompson,  in  his  letter  to  Farrar,  of  February,  18,  1819, 
says  he  has  "a  letter  from  Mr.  Webster,  saying  he  shall 
bring  the  written  opinions  of  each  judge." 

Webster,  in  his  letter  to  Farrar,  of  March  12,  1819,  says  : 
"  I  can  now  furnish  copies  of  the  opinions." 

Webster,  in  his  letter  to  Farrar,  of  March  29,  1819,  says  : 
*'  I  believe  Mr.  Wirt  &  Mr.  Hopkinson  are  both  now  occu- 
pied in  writing  out  their  respective  speeches." 

Brown,  in  his  letter  to  Farrar,  of  March  31,  1819,  states 
that  $2,500  must  be  raised  by  subscription  for  the  book; 
and  that  more  than  half  of  it  was  raised  before  he  left  Boston. 

Webster,  in  his  letter  to  Farrar,  of  April  3,  1819,  says  : 
"  I  am  expecting  Wirt's  argument  daily." 

John  Holmes,  in  his  letter  to  Farrar,  of  May  10,  1819, 
says:  "I  apprehend  it  will  be  impossible  to  prepare  my 
argument  at  length  in  the  Dartmo.  College  case  from  very 
imperfect  minutes.  If,  however,  you  can  wait  a  short  time, 
&  will  transmit  me  Mr.  Wheaton's  minutes,  I  will  make  the 
attempt.  Please  inform  me  how  soon  you  must  have  it." 
Farrar  appended  a  note  to  Holmes,  saying  that  Wheaton's 
notes  * '  are  probably  so  brief  as  to  afford  you  little  or  no 
assistance,"  not  to  be  drawn  from  your  "  own  notes." 

]VIr.  Hopkinson' s  argument  is  supposed  to  be  reported 
at  length  by  Farrar.  The  facts  are  these  :  Hopkinson  had 
prepared  an  elaborate  brief  before  arguing  the  cause.  He 
furnished  it  to  Mr.  Webster.  Webster  wrote  out  an  argu- 
ment for  him,  for  Farrar.  It  comprises  the  entire  argument 
as  reported,  except  about  two  pages.  These  were  added 
by  Hopkinson,  on  the  topics  suggested  by  Mr.  Webster. 
Both  the  brief  and  the  argument,  as  written  out  by  Web- 
ster, are  in  our  hands.  It  is  safe  to  say  that  Mr.  Webster's 
draft  did  not  diminish  the  force  of  the  statement  made  by 
Mr.  Hopkinson  in  his  brief. 


296  DARTMOUTH  COLLEGE  CAUSES. 

Mr.  Hopkinson,  in  his  letter  from  Bordentown,  New 
Jersey,  dated  May  2,  1810,  to  Webster,  says:  "I  return 
your  manuscript  with  many  thanks  for  the  trouble  you  have 
taken  to  give  me  a  respectable  position  in  a  book  whose 
importance  I  estimate  as  highly  as  you  do.  I  have  made 
a  small  addition  to  the  argument  you  have  prepared  from 
my  notes  ;  and  also  furnish  some  remarks  on  the  topicks 
you  have  suggested. 

"  I  continue  my  intention  to  visit  Boston  in  August ;  but 
as  I  shall  see  you  on  the  Delaware  before  that  time,  I  shall 
have  an  opportunity  to  fix  my  visit  with  more  precision. 
I  will  soon  write  again ;  but  must  now  put  up  my  packet 
for  you." 

Webster,  in  his  letter  to  Farrar,  of  June  10,  1819,  says : 
"  I  have  written  to  Judge  Story  enclosing  your  letter,  and 
desiring  him,  if  he  thinks  proper,  to  write  a  line  to  the 
clerk  directing  an  order  to  issue  for  plea,  answer  or 
demurrer  to  be  filed  Septr.  1. 

"  I  have  now  the  Washington  arguments,  &  the  opinions 
have  heretofore  been  forwarded  to  you  to  Exeter.  I  shall 
send  the  arguments  the  first  opportunity. 

"  On  reflexion  I  wish  the  quotation  from  Stillingfleet 
now  in  my  argument  to  remain  there  as  it  is,  and  the 
additional  quotation  to  be  put  into  a  note." 

Wheaton,  in  his  letter  from  New  York,  of  August  2, 
1819,  to  Farrar,  says:  "Will  3'ou  have  the  goodness  to 
send  me  by  return  of  mail  a  copy  of  Mr.  Hopkinson' s 
argument  in  the  Dartmouth  College  case.  Mr.  Webster 
desired  me  to  write  you  for  it,  and  as  I  am  now  rapidly 
approaching  the  case,  I  do  not  wish  to  be  without  it. 

"I  hope  you  had  a  pleasant  journey  home. 

"  I  was  unable  to  prevail  on  Judge  Livingston  to  give  us 
his  opinion." 

In  his  letter  of  June  19,  1819,  to  Farrar,  Webster  says  : 
' '  I  am  placed  in  a  very  disagreeable  situation  in  regard 
to  this  booh,  &  one  from  which  I  must  in  some  way  extri- 
cate mvself. 


FARRAR's    report DELAY    IN    PRINTING.  297 

"  I  have  become  accountable  for  the  100  dols.  to  Mr. 
Wheaton,  &  have  paid  him  also  15  or  20  dlls.  for  copies  — 
all  this  I  care  nothing  about.  But  where  is  the  book,  & 
when  is  it  coming  out?  I  have  promised  Mr.  Wheaton  a 
printed  copy  for  him  to  publish  by.  He  wants  it ;  &  with 
all  my  inquiries,  both  to  you  and  Mr.  Lamson,  I  can  get 
no  answer  nor  any  information.  In  the  meantime  I  hear 
that  Mr.  Mason's  argument  is  badly  printed,  and  that  the 
whole  thino:  is  about  as  bad  as  it  can  be.  What  is  to  be 
done  ?  In  the  first  place  you  must  send  me  back  Holmes' 
&  Wirt's  argument  as  it  is,  for  Wheaton.  He  must  have 
it.     He  needs  it  now  &  has  no  copy. 

"  I  plainly  see  you  will  not  have  it  in  print  this  month, 
whereas  he  wants  it  this  very  day,  wherefore  please  return 
it  by  the  mail  carrier  on  Monday,  that  I  may  forward  it  to 
him.  His  book — at  least  this  case  —  will  be  in  print  as 
soon  as  you  will  need  it,  at  any  rate  he  must  have  it. 

"  I  am  mortified  beyond  measure  at  the  progress  this 
printing  job  makes.  I  do  not  know  that  you  are  at  all  to 
blame  about  it,  but  I  regret  the  whole  undertaking.  If 
you'd  have  consented  that  it  should  have  been  printed 
here,  it  wd.  have  been  done  long  ago,  &  if  gentlemen  wd. 
not  have  furnished  their  arguments,  it  would  have  come 
out  with't  them. 

"  Do  -vvi'ite  to  me  on  Monday,  sendg.  me  back  Holmes  & 
Wirt. 

"  I  think  it  but  right  and  fair  to  suggest  to  Mr.  Lamson 
that,  unless  this  book  is  well  printed  on  good  paper  &  free 
from  errors,  the  case  at  Washington  will  probably  be 
printed  here,  in  a  proper  manner. 

In  his  letter  to  Farrar,  of  June  23,  1819,  Webster  says  : 
' « I  send  you  a  copy  of  the  pages  you  mentioned  beginnmg 
a  little  back  of  the  third  and  going  a  little  beyond  the  4th, 
so  as  to  sho^v  the  connection.  Please  examine  it  and  see  if 
it  appears  to  be  right  and  to  make  joints. —  I  shall  detain  the 
arg't   till   you    can    answer   this,    so   that   if  anything  is 


298  DAETMOUTH  COLLEGE  CAUSES. 

wrong  you  can  let  me  know  ;  I  believe  I  have  followed  your 
directions. 

"  I  enclose  you  also  a  minute  furnished  by  Judge  Story, 
to  direct  the  manner  of  stating  the  opinions. 

"  I  care  less  about  the  time  when  this  book  comes  out 
than  the  manner.  I  am  no  great  judge  of  these  things,  but 
if  it  should  not  be  thought  to  be  well  printed,  I  shall  wish 
it  at  the  bottom  of  the  Red  Sea. 

"  I  very  much  wished  to  see  my  part  of  it  as  it  came  out. 
But  in  this  I  cannot  probably  be  gratified.  It  is  not  very 
material,  but  it  is  essential  that  the  judges  opinions  be  ac- 
curately printed. 

"  I  made  myself  answerable  for  that  both  to  the  chief  jus- 
tice &  Judge  W.  ;  I  am  fearful  of  a  thousand  blunders  in  all 
these  opinions.  In  Judge  Story's  particularly,  the  citations 
are  so  numerous,  there  will  be  errors  which  will  not  be  cor- 
rected unless  he  sees  the  proof,  and  as  the  press  has  waited 
for  everybody  else,  I  think  in  common  decency  he  ought  to 
be  furnished  with  the  proofs  of  all  the  opinions.  He  will 
attend  to  them  immediately  and  return  the  proofs  in  all  cases 
the  next  mail.  I  am  persuaded  that  in  no  other  way  will 
the  printing  of  these  opinions  be  accurate , ' ' 

The  directions  of  Story  as  to  the  form  of  stating  the 
concurrence  of  the  other  judges  was  probably  lost  in  the 
printing-office,  but  in  his  letter  of  July  3,  1819,  to  Farrar, 
he  says  :  "It  appears  to  me  to  be  of  so  great  importance  to 
have  the  opinions  of  the  judges  of  the  Supreme  Court  of 
the  United  States  printed  with  minute  accuracy  in  the 
Dartmo.  College  case,  that  I  must  beg  you  to  send  me 
the  proof  sheets.  You  need  not  send  the  copy  of  the  MSS. 
as  my  recollection  will  generally  aid  me. 

"  I  will  send  you  the  proof  sheets  from  time  to  time,  by 
the  return  of  the  mail  direct  to  Portsmouth  or  Exeter,  as 
you  please." 

Marsh,  in  his  letter  to  Farrar,  of  January  21,  1820,  says, 
in  relation  to  the  suit,  Allen  v.  College:   "You  may  have 


ALLEN    V.  COLLEGE.  299 

been  informed  that  the  Rev*^  William  Allen,  as  executor  of 
the  last  will  &c  of  the  late  Dr.  J.  Wheelock,  has  commenced 
a  suit  against  the  trustees  of  Dartmouth  College  for  the 
recovery  of  certain  promissory  notes,  which  have  not  been 
hitherto  questioned.  We  now  think  however  that  we  have 
suffered  so  much  by  the  management  of  Dr.  W.,  Mr.  Allen 
&  their  friends,  that  if  any  use  can  be  made  of  the  judg- 
ment for  costs  in  the  actions  lately  decided  in  the  circuit 
court,  or  any  new  suit  for  mesne  profits  or  the  like,  to  ofi'set 
against  this  demand,  or  for  the  purpose  [of]  efiecting  a 
settlement  on  more  favorable  terms,  it  will  be  right  to  do  it. 
At  a  meeting  of  a  committee  of  the  trustees  in  Dec.  last  it 
was  agreed  that  Mr.  Olcott  should  request  you  to  procure 
the  cost  in  these  suits  taxed  ;  this  I  presume  has  been  done. 
I  have  also  to  request  you  to  institute  a  suit  for  the  mesne 
profits  of  the  action  in  which  I  was  plflT  and  Mr.  Allen  and 
others  defendants.  I  think  we  may  make  some  use  of  these 
things  beneficially  in  a  settlement  with  Mr.  Allen,  and  it  is 
certainly  perfectly  reasonable  that  he  should  pay  us  these 
costs,  and  all  damages  done  to  the  public  buildings,  library 
and  apparatus,  and  what  injury  we  sustained  by  being  de- 
prived of  their  use. 

"  Can  the  trustees  recover  damages  for  the  occupancy 
and  use  of  the  buildings,  from  the  time  possession  was  taken 
of  them,  under  the  University,  till  they  were  conveyed  to 
those  by  whom  these  three  actions  were  instituted  ;  if  any 
doubt  exists  in  anything  of  this  kind,  will  you  consult  Mr. 
Mason,  who  if  he  is  not  tired  of  hearing  of  our  D.  C.  troubles 
will  doubtless  afford  his  opinion." 

The  writ  of  Allen  and  Wheelock  against  the  College,  to 
which  we  have  before  referred,  contained  five  counts.  Three 
were  for  promissory  notes  ;  the  fourth  was  for  an  account 
stated,  $2,027.70  ;  and  the  fifth  was  for  $10,000,  for  work, 
labor,  care,  and  diligence  of  the  second  WTieelock  as  presi- 
dent of  Dartmouth  College,  etc. 

It  was  undoubtedly  intended  to  cover  by  the  latter  count 


300  DARTMOUTH    COLLEGE    CAUSES. 

certain  matters  about  which  Wheelock  consulted  Webster,  as 
before  stated.  The  trustees  put  the  cause  into  the  hands  of 
Judge  Smith  as  counsel,  who,  after  examination,  instructed 
them  that  he  was  unable  to  discover  any  valid  defence. 

We  have  mislaid  the  elaborate  letter  of  Judge  Smith  con- 
taining his  opinion,  referred  to  in  the  following,  by  Thomp- 
son and  cannot,  therefore,  insert  it. 

Thompson,  in  his  letter  of  April  26,  1820,  to  his  brother- 
in-law,  Olcott,  says  :  "  I  have  looked  at  the  enclosures  you 
sent  me,  repeatedly,  &  from  what  I  collect  from  them  am  of 
opinion  that  Mason's  ideas  as  to  the  course  we  ought  to 
pursue  are  just,  &  would  be  more  to  our  credit  &  profit 
than  any  others. 

"  Smith  writes  like  himself.  Possibly  the  nature  of  the 
document  or  documents  sent  him  may  justify  the  style  of 
his  letter. 

"  Even  in  that  case,  a  more  courtly  address  would  have 
answered  as  good  a  purpose.  If  D.  U.  performed  the  con- 
ditions precedent  to  which  Smith  alludes,  &  not  only 
accepted  the  release,  subject  &c.,  but  made  the  sequestra- 
tion he  mentions,  I  do  not  see  how  our  court  can  consist- 
ently with,  their  printed  opinion,  now  say  the  D.  U.  is  a  nul- 
lity, or  a  distinct  corporation  from  D.  C.  Without  adopt- 
ing the  Washington  doctrine  they  must  pronounce  the 
release  operative.  If  they  recognize  the  doctrine  held  by  the 
S.  C.  of  the  U.  States  as  the  legitimate  doctrine,  and  which 
ought  now  to  be  held,  it  might  prepare  the  way  to  institute 
the  proposed  suits,  if,  all  circumstances  considered,  it 
be  deemed  expedient,  or  what  would  be  better  still,  in  my 
opinion,  it  might  lead  to  a  favorable  accommodation  with 
Allen  &  others  who  are  liable.  Allen  however  I  fear,  is 
made  of  such  unconquerable  obstinacy  that  he  would  never 
yield.     Of  this  you  can  judge  better  than  I  can. 

"  If  D.  U.  did  all  that  was  necessary  on  their  part  to  ren- 
der the  release  operative,  I  should  think  it  expedient,  if 
allowable,  so  to  plead  as  to  try  the  validity  of  the  release. 


JUDGMENT    FOR    ALLEN.  301 

and  the  authority  of  the  treasurer  to  give  promissory  notes. 
If  both  points  could  not  be  tried,  or  rather  if  the  pleas 
are  inconsistent,  which  by  the  way  I  do  not  perceive,  I 
should  prefer  placing  the  defence  on  the  ground  of  the 
treasurer's  want  of  authority  to  bind  the  corporation  by 
promissory  notes.  But  I  caution  you  against  placing 
reliance  on  my  opinions,  unless  they  accord  with  your  own. 

"  It  is  so  long  since  I  have  attended  to  subjects  of  this 
kind  that  I  feel  much  less  able  to  advise  than  I  ever  was. 
I  hope  Ml'.  Marsh  will  instruct  you  fully.  If  you  do  not 
hear  from  him  at  large  on  the  subject,  I  hope  you  will  with- 
out fail  ride  over  and  see  him." 

Marsh,  in  his  letter  to  Farrar,  of  May  10,  1820,  says  : 
"  As  to  the  defence  against  the  notes  in  suit,  I  hope  Mr,  O. 
and  Judge  Smith  will  profit  by  Mr.  Mason's  hint  that  the 
treasurer  cannot  by  note  bind  the  corporation." 

Wiser  counsels  prevailed.  This  attempt  on  the  part  of 
the  old  trustees  to  stand  upon  the  decision  made  by  the 
State  court,  and  to  disregard  that  which  they  had  obtained 
from  the  Supreme  Court  of  the  United  States,  failed. 

At  the  May  term,  1820,  judgment  was  accordingly  entered, 
by  agreement,  in  favor  of  the  plaintiffs,  for  $7,886.41  dam- 
ages, and  for  their  costs,  and  execution  duly  issued  thereon 
May  31,  1820  ;  but  twelve  years  dragged  their  slow  length 
along  before  it  was  cancelled  by  payments. 


CHAPTER   XII. 

MAKSHALL'S  OPINION  THE  ONLY  ONE  READ  — DUV ALL  DIS- 
SENTS —  THE  OTHER  JUDGES  PRESENT  CONCUR  EST^  THE 
RESULT  — WASHINGTON  AND  STORY  FILE  OPINIONS  WITH 
THE  REPORTER  —  LIVINGSTON  AND  JOHNSON  —  THEIR 
VIEWS  IN  TRUSTEES  v.  WOODWARD,  AND  STURGES  v. 
CROWNINSHIELD  — JOHNSON'S  OPINIONS  IN  FLETCHER  v. 
PECK,  AND  OGDEN  v.  SAUNDERS. 

The  judges  who  sat  in  Trustees  v.  Woodward  were  John 
Marshall  and  Bushrod  Washington,  of  Virginia ;  William 
Johnson,  of  South  Carolina  ;  Brockholst  Livingston,  of  New 
York ;  Thomas  Todd,  of  Kentucky ;  Gabriel  Duvall,  of 
Maryland  ;  and  Joseph  Story,  of  Massachusetts. 

Webster,  in  his  letter  of  February  2,  1819,  to  his  brother, 
written  in  court,  after  the  reading  of  Marshall's  opinion,  says  : 
"All  is  safe.  Judajment  was  rendered  this  mornino;  reversing: 
the  judgment  in  New  Hampshire.  Present :  Marshall,  Wash- 
ington, Livingston,  Johnson,  Duval  and  Story.  All  concur- 
ring but  Duval ;  and  he  giving  no  reason  to  the  contrary. 
The  opinion  was  delivered  by  the  chief  justice.  It  was  very 
able  and  very  elaborate  :  it  goes  the  whole  length,  and  leaves 
not  an  inch  of  ground  for  the  University  to  stand  on." 
(1  Webster's  Priv.  Cor.  300.)  In  his  letter,  written  in  the 
court-room  at  the  same  time,  to  Judge  Farrar,  he  says ; 
"A  judgt.  has  been  pronounced  in  our  favor  this  morning: 
five  judges  out  of  the  six  judges  present  concurring.  I 
believe  Judge  Duval  is  the  dissentient.  The  opinion  was 
pronounced  by  the  chief  justice.  It  was  very  long,  and 
reasoned  out  from  step  to  step.  It  did  not  cite  cases,  I 
understand  an  opinion  has  also  been  drawn  by  Judge  Story, 

( 802  ) 


CAUSE    DECIDED.  303 

which  will  probably  be  given  to  the  reporter."      (Note  to 
Mem.  of  Farrar.) 

In  his  letter,  written  the  same  day,  to  Judge  Smith,  he 
says ;  "I  have  the  pleasure  to  tell  you  that  the  College 
cause  has  been  decided  in  our  favor.  The  chief  justice, 
"Washington,  Livingston,  Johnson,  and  Story,  Justices, 
concurrentibiis ;  Duval,  Justice,  dissentiente ;  a6se?z<e,  Todd. 
The  opinion  was  delivered  by  the  chief.  I  believe  other 
judges  also  drew  up  opinions,  which  I  hope  to  see  pul)- 
Hshed."     (1  Webster's  Priv.  Cor.  299,  300.) 

In  his  letter,  wi'itten  the  same  day,  to  Mr.  Brown,  he  says  : 
"All  is  safe  and  certain.  The  chief  justice  delivered  an 
opinion  this  morning,  in  our  favor,  on  all  the  points.  In 
this  opinion,  Washington,  Livingston,  Johnson  and  Story, 
justices,  are  understood  to  have  concurred.  Duval,  Justice, 
it  is  said,  dissents.  Mr.  Justice  Todd  is  not  present.  The 
opinion  goes  the  whole  length,  and  leaves  nothing  further 
to  be  decided.  I  give  you  my  congratulations  on  this  occa- 
sion, and  assure  you  that  I  feel  a  load  removed  from  my 
shoulders,  much  heavier  than  they  have  been  accustomed 
to  bear. ' '     ( 1  Webster' s  Priv.  Cor.  300. ) 

In  his  letter  to  Mason,  of  February  4,  1819,  from  whicli» 
we  have  already  quoted,  he  says:  "  Since  my  arrival  here 
I  have  been  all  the  time  in  court,  and  can  therefore  as  yet 
say  nothing  more  than  I  have  seen  and  heard  here.  Most 
of  the  judges  came  here  with  opinions  drawn  in  the  col- 
lege cause.  *  *  *  Five  of  the  judges  concurred  in 
the  result,  and  I  believe  most  or  all  of  them  will  give  their 
opinions  to  the  reporter.  Nothing  has  been  said  in  court 
about  the  other  causes.  Mr.  Piukney  says  he  means  to 
argue  one  of  them  ;  but  I  think  he  will  alter  his  mind. 
There  is  nothing  left  to  argue  on.  The  chief  justice's  opin- 
ion was  in  his  own  peculiar  way.  He  reasoned  along  from 
step  to  step,  and,  not  referring  to  the  cases,  adopted  the 
principles  of  them,  and  worked  the  whole  into  a  close,  con- 
nected, and  very  able  argument.     Some  of  the  other  judges, 


304  DAETMOUTH  COLLEGE  CAUSES. 

I  am  told,  have  drawn  opinions  with  more  reference  to 
authorities."     (Mem.  of  Mason,  213,  214.) 

Mr.  Hopkinson,  in  his  letter  to  Mr.  Brown,  of  February 
2,  1819,  —  following  the  line  of  that  part  of  Mr.  Webster's 
argument  which  was  "left  out"  of  the  report,  —  says: 
"  Our  triumph  in  the  college  cause  has  been  complete. 
Five  judges,  only  six  attending,  concur  not  only  in  a  decision 
in  our  favor,  but  in  placing  it  upon  principles  broad  and 
deep,  and  which  secure  coi'porations  of  this  description  from 
legislative  despotism  and  party  violence  for  the  future.  The 
court  goes  all  lengths  with  us,  and  whatever  trouble  these 
gentlemen  may  give  us  in  future,  in  their  great  and  pious 
zeal  for  the  interests  of  learning,  they  cannot  shake  those 
principles  which  must  and  will  restore  Dartmouth  College 
to  its  true  and  original  owners."  (1  Webster's  Priv.  Cor. 
301.) 

The  italics  are  ours.  The  meaning  of  the  words,  '■^  all 
lengths,''  is  to  be  read  in  the  light  of  Webster's  letter  to 
Mason,  of  April  13,  1819,  in  which  he  says:  "  As  to  the 
college  cause,  you  may  depend  on  it  that  there  will  be  diffi- 
culty in  getting  delay  in  that  case,  Tvdthout  reason.  I  flatter 
'mvself  the  judge  will  tell  the  defendants,  that  the  new  facts 
which  they  talk  of,  icere  presented  to  the  ininds  of  the  judges 
at  Washington,  and  that,  if  all  proved,  they  would  not  have 
the  least  effect  on  the  opinion  of  any  judge  ;  that  unless  it 
can  be  proved  that  the  king  did  not  grant  such  a  charter  as 
the  special  verdict  recites,  or  that  the  New  Hampshire  gen- 
eral court  did  not  pass  such  acts  as  are  therein  contained, 
no  material  alteration  of  the  case  can  be  made."  (Mason's 
Mem.  223.)  The  italics  are  ours.  Webster  here  uttered, 
not  prophecy,  but  fact. 

Judge  Living-ston  took  his  seat  on  the  bench  of  the  Fed- 
eral  Supreme  Court  at  the  February  term,  1807.  Story 
came  to  that  bench  in  1812.  From  that  time,  till  Living- 
ston's  death,    Story   had    greater   influence   over   him,    if 


JUDGE    JOHNSON STOKY's    OPINION.  305 

possible,  than  even  Kent  had.  He  published  no  opinion  in 
Sturses  V.  Crowninshield,  and  we  are  not  aware  that  one 
exists  in  an  accessible  form.  Story  was  very  ambitious,  and 
naturally  desired  to  act  as  the  organ  of  the  court  and  to 
deliver  its  opinion  in  a  case  of  so  much  importance  ;  and 
Livingston  as  naturally  desired  that  his  friend  should  have 
that  opportunity.  In  this,  as  in  other  important  cases, 
Story  had  the  good  sense  and  tact  to  submit  his  opinion  for 
examination  and  criticism  to  those  upon  whose  heads  and 
hearts  he  could  rely,  before  it  was  considered  by  his 
brethren. 

Judge  Prescott,  in  his  letter  of  January  9,  1819,  to  Story, 
says :  "I  have  read  your  opinion  with  care  and  great 
pleasure.  *  *  *  x  see  nothing  I  should  wish  altered 
in  it.  I  hope  it  will  be  adopted  without  diminution  or  sub- 
traction.'' Livingston,  in  his  letter  to  Judge  Story,  of  Jan- 
uary 24,  1819,  says:  "I  return  your  opinion  in  the  case 
of  Dartmouth  College,  which  has  afforded  me  more  pleasure 
than  can  easily  be  expressed.  It  was  exactly  what  I  had 
expected  from  you,  and  hope  it  will  he  adopted  without 
alteration.  What  you  say  of  the  contract  of  marriage  is  a 
complete  answer  to  the  difficulty  made  on  that  subject,  and 
I  am  not  sorry  that  you  have  taken  notice  of  the  act  of  the 
legislature  dissolving  this  contract,  which  has  been  passed 
in  this  State.  As  to  the  eJEfect  of  the  separation  of  the  two 
countries  on  the  charter  of  this  college,  in  addition  to  what 
you  say,  it  appears  to  me  that  its  existence  is  admitted  by 
the  very  acts  which  are  complained  of."  (1  Life  of  Story, 
by  his  Son,  323,  324.)  A  comparison  of  Livingston's  let- 
ter with  Story's  opinion,  as  published  by  Farrar,  shows 
that  it  was  afterwards  modified.  How  radical  these  changes 
were,  we  shall  probably  never  know. 

The  true  construction  of  the  obligation  clause  was  a  vital 
point  in  Sturges  v.  Crowninshield.  This,  though  it  tested 
the  constitutionality  of  the  New  York  bankrupt  law,  was  a 
Massachusetts  case.     It  arose  in  Judge  Story's  circuit,  and 


306  DARTMOUTH  COLLEGE  CAUSES. 

was  taken  from  the  brief  term  of  the  Circuit  Court  which 
commenced  October  15,  1817,  to  the  Supreme  Court,  upon 
the  formal  certificate  that  the  judges  of  the  Circuit  Court 
were  opposed  in  opinion  upon  the  following  questions  :  — 

"  1 .  Whether,  since  the  adoption  of  the  Constitution  of  the  United 
States,  any  State  has  authority  to  pass  a  bankrupt  law,  or  whether 
the  power  is  exclusively  vested  in  the  Congress  of  the  United 
States. 

"2.  Whether  the  act  of  New  York,  passed  the  third  day  of  April, 
1811,  and  stated  in  the  plea  in  this  case,  is  a  bankrupt  act,  within 
the  meaning  of  the  Constitution  of  the  United  States. 

"3.  Whether  the  act  aforesaid  is  an  act  or  law  impairing  the 
obligation  of  contracts,  within  the  meaning  of  the  Constitution  of 
the  United  States. 

"  4.  Whether  the  plea  is  a  good  and  sufficient  bar  of  the  plaintiff's 
action. ' ' 

Sturges  V.  Crowninshield  was  transferred  and  reported 
previous  to  the  College  case  ;  but  both  were  before  the  court 
and  under  consideration  substantially  the  same  length  of 
time.  Both  were  important  cases,  and  involved  the  con- 
struction of  the  same  provision  of  the  Constitution.  To  be 
thoroughly  understood,  this  case  must  be  read  and  com- 
pared with  the  individual  opinions  of  the  judges  in  Ogden  v. 
Saunders,  Robbins  v.  Shaw,  Mason  v.  Haile,  12  Wheat.  214, 
383;  Boyle  v.  Zacharie,  6  Pet.  348,  643;  Rhode  Island  v. 
Massachusetts,  12  Pet.  720  ;  Cook  v.  Moffat,  5  How.  310, 
311 ;  Company  v.  Debolt,  16  How.  416,  and  subsequent 
cases.  But  six  judges  sat  in  Sturges  v.  Crowninshield. 
Upon  the  general  question,  as  suggested  by  Mr.  Webster, 
they  were  well  known  to  be  equally  divided.  Livingston 
then  sustained  the  constitutionality  of  these  laws,  in  whose 
atmosphere  he  had  been  reared  ;  and  we  are  not  aware  of 
any  evidence  that  he  ever  concurred  either  in  the  adroitlj^ 
framed  judgment  in  that  case,  or  the  reasoning  b}''  which 
such  a  result  was  reached.  As  we  shall  hereafter  see, 
neither  Washington  nor  Johnson  ever  concurred  in  the  rea- 


JUDGE    JOHNSON STURGES    V.  CROWNINSHIELU .        307 

soiling  of  Judge  Marshall  in  important  particulars.  The 
judgment  wliich  Webster  saw  was  coming  was  the  result, 
not  of  accord,  but  of  discord,  wrought  into  a  compromise, 
by  the  diplomatic  skill  and  tact  of  Marshall,  and  his  ascend- 
ancy over  the  wills  of  men,  even  when  he  could  not  shake 
their  convictions. 

In  his  re\'ised  report  of  Hicks  v.  Hotchkiss,  7  Johns.  Ch. 
29(t,  315,  one  of  the  last  causes  heard  before  him,  Chan- 
cellor Kent  felt  compelled  to  say  :  — 

"  No  objection  has  been  raised,  as  far  as  I  recollect,  to  the  con- 
stitutionality of  these  insolvent  laws,  by  the  judiciary  of  this  or  of 
any  other  State,  or  by  that  of  the  United  States  until  the  decision 
in  Sturges  v.  Crowninshield. 

"  But  the  case  of  Sturges  v.  Crowninshield  is  not  free  from  dif- 
ficulty as  to  the  extent  of  its  application.  The  act  of  1811  was 
passed  after  the  making  of  the  contract  to  which  the  discharge 
under  the  act  was  pleaded  as  a  bar,  and  the  counsel  for  the  plain- 
tiff raised  the  distinction  between  the  case  of  a  contract  made 
before  and  after  the  passing  of  the  act ;  and  contended,  that  if 
the  act  was  not  unconstitutional  and  void  as  to  future  contracts,  it 
was  clearly  so  as  to  contracts  existing  when  it  was  passed.  The 
chief  justice,  however,  did  not  take  notice  of  that  distinction,  and 
all  his  reasoning  went  to  illustrate  and  enforce  the  general  principle 
in  the  Constitution  that  contracts  should  be  inviolable,  and  that  any 
law  releasing  the  party  from  his  obligation  to  pay  impaired  that 
obligation." 

Kent  shrunk  from  the  logical  consequences  of  the  reason- 
ing of  the  chief  justice  ;  but,  as  his  opinion  in  Ogden  v. 
Saunders  shows,  Marshall  did  not. 

Judge  Johnson  was  a  South  Carolinian,  of  English  stock. 
He  was  born  in  1771  ;  graduated  at  Princeton,  with  the 
highest  honors,  when  nineteen ;  read  law  under  the  eye 
of  C.  C.  Pinkney ;  was  admitted  to  the  bar  when  twenty- 
two,  and  very  soon  attained  eminence  in  his  profession. 
When  twenty-three,  he  became  a  member  of  the  Legislature, 
was  twice  reelected,  and  was  speaker  during  his  last  term. 


308  DARTMOUTH  COLLEGE  CAUSES. 

But  as  his  tastes  were  judicial,  rather  than  political,  he 
retired  from  political  life,  and  under  the  reorganization 
of  the  judiciary  system  became  one  of  the  judges  of  the 
Circuit  Court. 

On  March  26,  1804,  he  was  appointed  by  Jefferson  to  the 
bench  of  the  Supreme  Court.  At  the  time  of  the  decision 
in  the  College  case,  he  was  forty-eight  years  old.  In  1822, 
he  published  the  "Life,  etc.,  of  Nathaniel  Greene."  A 
portion  of  this  work  was  devoted  to  the  ' '  history  of  par- 
ties." He  proposed  to  continue  the  latter,  and  to  trace 
how  far,  if  at  all,  the  Supreme  Court  had,  by  construction, 
"  advanced  beyond  its  constitutional  limits,  and  trespassed 
on  those  of  the  State  authorities  ; ' '  and  corresponded  con- 
fidentially with  Jefferson  upon  the  subject,  as  their  letters 
of  April  11,  1823,  and  June  12,  1823,  respectively  show. 
A  series  of  his  letters  to  the  Charleston  Courier  show  that 
he  made  some  progress  in  this  work,  but  we  are  not  aware 
that  it  was  ever  completed,  or  that,  except  in  this  form, 
any  part  of  it  was  given  to  the  world. 

Judge  Story,  in  his  letter  to  Fay,  of  February  25,  1808 
(1  Life  of  Story,  168),  describing  the  judges,  says:  "I 
ought  not  to  pass  by  Judge  Johnson,  though  I  scarcely 
know  how  to  exhibit  him  individually.  He  has  a  strong 
mathematical  head,  and  considerable  soundness  of  erudi- 
tion. He  reminds  me  of  Mr.  Lincoln,  [Jefferson's  at- 
torney-general when  Marbury  v.  Madison  arose  and  was 
decided,  and  the  nominal  successor  of  Judge  Cushing,] 
and  in  the  character  of  his  mind  he  seems  to  me  not  dis- 
similar. He  has,  however,  less  of  metaphysics  and  more 
of  logic."  The  opinion  of  Story  in  later  years  was  less 
flattering. 

Soon  after  his  accession  to  the  bench,  though  politically  he 
seems  to  have  regarded  himself  as  the  immutable  point  in 
the  universe.  Story  changed  from  a  radical  Republican,  in 
the  sense  in  which  that  term  was  used  in  olden  time,  to  a 
Federal  Imperialist  of  the  Jay  school,  leaving  Marshall  far 


JOHNSON OPINIONS    BEFORE    MARSHALL'S    TIMK.       309 

behind  ;  and  afterwards  was  not  inclined  to  look  with  spe- 
cial favor  upon  those  whose  opinions  were  less  advanced  than 
his  own.  Johnson  did  not  grow  in  favor  with  him.  He 
termed  Johnson's  views  upon  certain  constitutional  ques- 
tions "  peculiar  ;"  and  in  some  respects  they  were.  John- 
son's tastes  were  quiet,  unpretentious,  and  scholarly.  His 
learning  was  rare,  curious,  and  diversified  ;  but  though  his 
was  an  important  circuit,  we  know  little  of  his  judicial  life 
beyond  what  is  disclosed  by  his  opinions  in  the  Supreme 
Court,  and  they  vary  much.  Some  of  them  are  strong  and 
able  ;  others  are  wanting  in  exactness  and  precision,  and 
indicate  that  the  writer  was  confused,  and  unable  to  put  his 
opinion  on  grounds  satisfactory  to  himself.  His  legal 
instincts  seemed  to  far  outrun  his  power  to  make  others 
see,  by  written  words,  what  he  felt.  He  had  little  in 
common  with  the  Southern  politicians  of  his  day,  with 
whom  he  nominally  afiiliated.  He  was  not  only  the 
staunchest  of  Union  men  in  the  days  of  nullification,  but 
always  had  a  strong  National-Federal  bias ;  in  a  word, 
though  not  an  Imperialist,  like  Story,  he  was  a  Centralist 
from  conviction. 

Before  Marshall's  appointment,  the  Supreme  Court  fol- 
lowed the  English  practice,  under  which  each  judge  who  sat 
in  a  cause  gave  an  opinion  whenever  he  thought  there  was 
occasion  for  it ;  but,  in  general,  those  judges  who  presided 
at  the  circuit  declined  to  sit  in  banc,  except  in  a  case  of  equal 
division.  Under  Marshall  (who  argued  but  a  single  cause 
in  that  court  before  he  became  chief  justice)  tliis  practice 
was  rooted  out,  so  far  as  his  influence  extended  ;  the  judges 
reheard  the  causes  which  they  had  decided  at  the  circuit ;  the 
practice  of  giving  individual  ophiions  was  repressed  ;  the 
practice  became  general  of  making  one  judge  "  the  organ  of 
the  coui"t,"  of  virtually  assigning  causes,  and  of  taking  them 
home  for  the  purpose  of  writing  up  opinions  in  vacation  ; 
and  of  having  an  opinion  read  by  a  single  judge  as  the  opinion 
of  the  court,  when  the  judgment  received  the  assent  of  but 


310  DARTMOUTH  COLLEGE  CAUSES. 

three,  and  sometimes  two,  of  the  judges,  and  the  reasoning 
of  a  less  number.  This  vicious  practice  occasioned  great 
dissatisfaction. 

The  primitive  court  consisted  of  five  judges.  It  was 
increased  to  six,  and  afterwards  to  seven.  For  years  it  was 
necessary  for  two  of  these  judges,  in  general,  to  ride  the  cir- 
cuit together  ;  not  infrequently,  after  the  accession  of  Mar- 
shall, but  four  judges  held  the  general  term  at  Washington, 
and  constituted  the  court  when  many  important  causes  were 
decided.  Two  of  the  judges  were  aged  and  infirm,  and  one 
of  them,  for  ^^ears  before  his  death,  was  so  superannuated 
that  he  practically  left  his  circuit,  a  most  important  one, 
to  take  care  of  itself,  and  was  a  nonentity  at  Washington. 
The  new  chief  had,  from  his  acknowledged  ability  and 
force,  and  weight  of  character,  and  from  his  tact  and  diplo- 
matic skill,  great  influence  with  his  brethren.  For  years  he 
prepared  a  large  share  of  the  opinions.  When  an  occasion 
required,  he  was  an  adept  in  "patching  up"  compromise 
judgments  and  opinions.  Confident  that  he  was  right,  he 
sometimes  entered  up  judgment,  and  read  opinions  as  the 
opinion  of  the  court,  without  being  as  careful  as  a  discreet 
judge  ought,  to  find  out  whether  his  opinion  was  that  of  a 
majority  or  minority  of  the  court.  In  Rose  v.  Himel}^,  4 
Cranch,41,  he  delivered  the  leading  opinion,  and  ordered  the 
judgment  of  the  Circuit  Court  to  be  reversed,  etc.,  when  in 
fact  but  a  single  judge  agTeed  with  him,  as  afterwards 
appeared  in  Hudson  v.  Guestier,  6  Cranch,  281.  In  one  of 
the  cloud  of  opinions  delivered  by  Marshall  at  the  trial  of 
Aaron  Burr,  he  admits  that  he  made  a  mistake  of  a  similar 
character  in  Bollman's  case.  In  this  way  two  judges  some- 
times practically  became  a  majority  of  six,  and  three  a 
majority  of  seven.  The  cases  referred  to  were  by  no  means 
the  only  instances  of  a  similar  kind,  nor  could  they  fairly  be 
attributed  to  the  press  of  business.  These  facts  were  open 
secrets  in  narrow  circles.  This  intensified  the  dissatis- 
faction.    A  judiciary  bill  was  reported  to  Congress  by  the 


PKIMITIVE    COURT PRACTICE    UNDER   MARSHALL.       311 

attorney-general,  which  required  the  judges  to  deliver  their 
oiiinions  seriatim  in  open  court,  and  then  to  give  them  in 
writing  to  the  clerk,  to  be  entered  upon  his  record.  This 
feeling  lay  at  the  bottom  of  the  attempts  in  Congress  (which 
gave  Webster  so  much  trouble,  and  some  of  the  judges  so 
much  uneasiness)  to  prohibit  the  judges  from  setting  aside 
a  State  law  as  unconstitutional  unless  a  certain  number  of 
judges  sat  in  the  cause  and  concurred  in  the  judgment.  It 
was  one  of  the  causes  of  Jefferson's  dislike  of  Marshall, 
which  made  him  say,  with  a  bitterness  unusual  to  him,  in  his 
letter  to  Ritchie,  of  June  25, 1820  :  "An  opinion  is  huddled 
up  in  conclave,  perhaps  by  a  majority  of  one,  delivered  as  if 
unanimous,  and  with  the  silent  acquiescence  of  lazy  or  timid 
associates,  by  a  crafty  chief  judge,  who  sophisticates  the  law 
to  his  mind  by  the  turn  of  his  own  reasoning." 

In  such  a  judicial  atmosphere,  Johnson,  keen,  critical, 
sagacious,  able,  and  honest,  as  he  was,  sometimes  silently 
acquiesced  in  opinions  and  judgments  contrary  to  his  con- 
victions ;  and  at  others,  set  the  example  commended  by 
Jefferson  in  his  letter  of  June  12,  1823  :  "I  rejoice  in  the 
example  you  set  of  seriatim  opinions.  I  have  heard  it  often 
noticed,  and  always  with  high  approbation.  Some  of  your 
brethren  will  be  encouraged  to  follow  it  occasionally,  and 
in  time  it  may  be  felt  by  all  as  a  duty,  and  the  sound 
practice  of  the  primitive  court  be  again  restored.  Why 
should  not  every  judge  be  asked  his  opinion,  and  give  it 
from  the  bench,  if  only  by  yea  or  nay?  Besides  ascertain- 
ing the  fact  of  his  opinion,  which  the  public  have  a  right 
to  know,  in  order  to  judge  whether  it  is  impeachable  or 
not,  it  would  show  whether  the  opinions  were  unanimous 
or  not,  and  thus  settle  more  exactly  the  weight  of  their 
authority." 

The  true  construction  of  the  obligation  clause  must  be 
determined  upon  principle  at  last.  In  what  sense  did  the 
people  use  these  words  when  they  adopted  this  provision? 
When  we  know  this  we  know  all.     History,  reasoning,  and 


312  DARTMOUTH  COLLEGE  CAUSES. 

canons  are  only  pertinent  as  they  bear  upon  this  ques- 
tion. 

They  are  intimately  connected,  but  the  words  "  obliga- 
tion ' '  and  ' '  contract ' '  are  no  more  synonymous  than  light 
and  darkness.  The  Constitution  does  not  prohibit  legisla- 
tive interference  with  contracts.  It  protects  the  obligation ; 
but  the  contract  is  protected  only  so  far  as  that  results 
incidentally  from  the  prohibition  against  impairing  the 
obligation.  That  the  obligation  of  all  executory  con- 
tracts, aside  from  those  which  undertake  to  barter  away 
sovereignty,  whether  express,  tacit,  or  otherwise  inferred, 
or  those  which  the  law  erects,  as  in  case  of  absolute  idiots, 
etc.,  is  protected,  is  clear.  Beyond  lies  the  disputed  terri- 
tory. Marshall,  in  his  second  opinion  in  Fletcher  v.  Peck, 
6  Cranch,  127,  assumed  that  executed  contracts  carried 
with  them,  by  implication,  an  obligation  which  the  Constitu- 
tion protected  after  the  execution  ;  in  other  words,  that  in 
this  way  the  naked  sale  is  protected.  This  is  the  foundation 
of  the  error.  In  that  case,  but  five  of  the  seven  judges  sat, 
and  Johnson  delivered  a  dissenting  opinion,  in  the  conclu- 
sion of  which  he  says :  "I  have  been  very  unwilling  to 
proceed  to  the  decision  of  this  cause  at  all.  It  appears  to 
me  to  bear  strong  evidence  upon  the  face  of  it  of  being  a 
mere  feigned  case.  It  is  our  duty  to  decide  on  the  rights, 
but  not  on  the  speculations  of  parties." 

His  legal  instincts  led  him,  it  seems  to  us,  to  the  correct 
conclusion.     He  says  :  — 

"The  right  of  jurisdiction  is  essentially  connected  to,  or  rather 
identified  with,  the  national  sovereignty.  To  part  with  it  is  to 
commit  a  species  of  political  suicide.  In  fact,  a  power  to  produce 
its  own  annihilation  is  an  absurdity  in  terms.  It  is  a  power  as 
utterly  incommunicable  to  a  political  as  to  a  natural  person.  But 
it  is  not  so  with  the  interests  or  property  of  a  nation.  Its  pos- 
sessions nationally  are  in  nowise  necessary  to  its  political  exist- 
ence ;  they  are  entirely  accidental,  and  may  be  parted  with  in 
every  respect  similarly  to  those  of  the  individuals  who  compose 


CONSTRUCTION  OF  OBLIGATION  CLAUSE.        318 

the  community.  *  *  *  j  have  thrown  out  these  ideas  that 
I  may  have  it  distinctly  understood  that  my  opinion  on  this  point 
is  not  founded  on  the  provision  in  the  Constitution  of  the  United 
States  relative  to  laws  impairing  the  obligation  of  contracts.  It 
is  much  to  be  regretted  that  words  of  less  equivocal  signification 
had  not  been  adopted  in  that  article  of  the  Constitution.  There 
is  reason  to  believe  from  the  letters  of  Publius,  which  are  well 
known  to  be  entitled  to  the  highest  respect,  that  the  object  of  the 
Convention  was  to  afford  a  general  protection  to  individual  rights 
against  the  acts  of  the  State  Legislatures." 

It  is  obvious  from  the  context,  that  in  his  reference  to 
Publius,  Johnson  refers,  not  to  No.  7  of  "  The  Federalist," 
written  by  Hamilton,  but  to  No.  44,  written  by  Madison. 
He  continues :  — 

"Now,  a  grant  or  conveyance  by  no  means  necessarily  implies  the 
continuance  of  an  obligation  beyond  the  moment  of  executing  it. 
It  is  most  generally  but  the  consummation  of  a  contract,  is 
functus  officio  the  moment  it  is  executed,  and  continues  afterwards 
to  be  nothing  more  than  the  evidence  that  a  certain  act  was  done. ' ' 

The  latter  statement  seems  to  us  to  contain  a  great  and 
incontrovertible  legal  truth.  It  was,  in  effect,  what  was 
before  said  by  Judge  Wilson,  and  what  was  afterwards 
repeated  by  Judge   McLean. 

However  much  we  might  desire  to  change  the  grounds 
on  which  it  has  been  assumed  to  rest,  no  honest  man  could 
wish  to  disturb  the  judgment  in  this  case.  Taking  the  case 
as  stated  in  the  record,  it  was  an  attempt  at  downright  rob- 
bery. Our  convictions  are  that  the  judgment  was  sustain- 
able upon  other  grounds  than  those  stated.  m 

Where  the  State  conveys  a  tract  of  land,  it  does  so,  not  as 
a  sovereign,  but  as  an  owner,  the  same  as  any  individual, 
municipal  or  other  corporation  might,  and  with  precisely 
the  same  effect.  This  was  the  view  of  Judges  Johnson  and 
Wilson,  of  Morris  and  others,  and  seems  now  the  doctrine 
of  the  Supreme  Court.  Murray  v.  Charleston,  96  U.  S. 
445  ;   Moore  v.  Robbins,  96  U.  S.  533.     But  where  it  un- 


314  DARTMOUTH  COLLEGE  CAUSES. 

dertakes  to  divest  itself  of  sovereignty,  it  assumes  to,  and 
must,  act  as  a  sovereign. 

Judge  Johnson  published  no  opinion  in  the  College  case, 
and  gave  none  in  Sturges  v.  Crowninshield.  In  Green  v. 
Biddle,  8  Wheat.  96,  he  refused  to  discuss  the  obligation 
clause  ;  but  in  Ogdcn  v.  Saunders  he  states  what  his  opinion 
was  in  Sturges  v.  Crowninshield.     He  says  :  — 

"  The  report  of  the  case  of  Sturges  v.  Crowninshield  needs  also 
some  explanation.  The  court  was,  in  that  case,  greatly  divided 
in  their  views  of  the  doctrine,  and  the  judgment  partakes  as  much 
of  a  compromise  as  of  a  legal  adjudication.  The  minority  thought 
it  better  to  yield  something  than  risk  the  lohole.  And,  although 
their  course  of  reasoning  led  them  to  the  general  maintenance  of 
the  State  power  over  the  subject,  controlled  and  limited  alone  by 
the  oath  administered  to  all  their  public  functionaries  to  maintain 
the  Constitution  of  the  United  States,  yet,  as  denying  the  power 
to  act  upon  anterior  contracts  could  do  no  harm,  but,  in  fact, 
imposed  a  restriction  conceived  in  the  true  spirit  of  the  Constitu- 
tion, they  were  satisfied  to  acquiesce  in  it,  provided  the  decision  were 
so  guarded  as  to  secure  the  power  over  posterior  contracts  as  well 
from  the  positive  terms  of  the  adjudication  as  from  inferences  dedu- 
cible  from  the  reasoning  of  the  court.  The  case  of  Sturges  y. 
Crowninshield,  then,  must,  in  its  authority,  be  limited  to  the  terms 
of  the  certificate,  and  that  certificate  affirms  two  propositions : — 

"•  1.  That  a  State  has  authority  to  pass  a  bankrupt  law,  provided 
such  law  does  not  impair  the  obligation  of  contracts  within  the 
meaning  of  the  Constitution,  and  provided  there  be  no  act  of  Con- 
gress in  force  to  establish  an  uniform  system  of  bankruptcy',  con- 
flicting with  such  law. 

^.  "  2.  That  a  law  of  this  description,  acting  upon  prior  contracts, 
is  a  law  impairing  the  obligation  of  contracts  within  the  meaning 
of  the  Constitution. 

"  WJiatever  inferences  or  whatever  doctrines  the  opinion  of  the 
court  in  that  case  may  seem  to  support.,  the  concluding  words  of 
that  opinion  were  intended  to  control  and  to  confine  the  authority  of 
the  adjudication  to  the  limits  of  the  certificate. 

"The  first  of  these  questions  [whether  a  State  bankrupt  law, 
operating  upon  subsequent  contracts,  is  prohibited  by  the  obligation 


JOHNSON   EXPLAINS   STURGES    V.  CKOWNINSHIELD.       315 

clause]  has  been  so  often  examined  and  considered,  in  this  and 
other  courts  of  the  United  States,  and  so  little  progress  has  yet 
been  made  in  fixing  the  precise  meaning  of  the  words  '  obligation 
of  a  contract,'  that  I  should  turn  in  despair  from  the  inquiry, 
were  I  not  convinced  that  the  difficulties  the  question  presents  are 
mostly  factitious,  and  the  result  of  refinement  and  technicality ; 
or  of  attempts  at  definition,  made  in  terms  defective  both  in  pre- 
cision and  comprehensiveness.  Right  or  wrong,  I  come  to  my 
conclusion  on  their  meaning,  as  applied  to  executory  contracts, 
the  subject  now  before  us,  by  a  simple  and  short-handed  exposi- 
tion. Right  and  obligation  are  considered  by  all  ethical  writers  as 
correlative  terms.  Whatever  I,  by  my  contract,  give  another  a 
right  to  require  of  me,  I,  by  that  act,  lay  myself  under  an  obli- 
gation to  yield  or  bestow.  The  obligation  of  every  contract 
will  then  consist  of  that  right  or  power  over  my  will  or  actions, 
which  I,  by  my  contract,  confer  on  another.  And  that  right  and 
power  will  be  found  to  be  measured  neither  by  moral  law  alone, 
nor  universal  law  alone,  nor  by  the  laws  of  society  alone,  but  by 
a  combination  of  the  three ;  an  operation  in  which  the  moral  law 
is  explained  and  applied  by  the  law  of  nature,  and  both  modified 
and  adapted  to  the  exigencies  of  society  by  positive  law.  *  *  * 
They  [the  parties]  can  enter  into  no  contract  which  the  laws  of 
that  community  forbid,  and  the  validity  and  effect  of  their  con- 
tracts is  what  the  existing  laws  give  to  them.  *  *  *  If  it  be 
objected  to  these  views  of  the  subject,  that  they  are  as  applicable  to 
contracts  prior  to  the  law  as  to  those  posterior  to  it,  and  therefore, 
inconsistent  luith  the  decision  in  the  case  of  Stxirges  v.  Crownin- 
shield,  my  reply  is,  that  I  think  this  no  objection  to  its  correctness. 
I  entertained  this  opinion  then,  and  have  seen  no  reason  to  doubt  it 
since.  But,  if  applicable  to  the  case  of  prior  debts,  multo  fortiori, 
will  it  be  so  to  those  contracted  subsequent  to  such  a  law ;  the 
posterior  date  of  the  contract  removes  all  doubt  of  its  being  in 
the  fair  and  unexceptionable  administration  of  justice  that  the 
discharge  is  awarded." 

We  regard  these  extracts  from  Johnson's  opinion,  a  por- 
tion of  which  we  have  put  in  italics,  as  very  important. 

The  opinions  of  Marshall  in  the  College  case  and  in 
Sturges  V.  Crowninshield,  so  far  as  they  pertain  to  the  con- 


316  DARTMOUTH  COLLEGE  CAUSES. 

struction  of  this  clause,  are  virtually  a  single  opinion.  The 
extracts  we  have  just  quoted  do  not  undertake  to  give  a  full 
history  of  the  position  of  individual  judges,  or  of  the  report 
in  the  latter  case ;  but,  as  far  as  it  goes,  we  assume  that  it 
states  the  facts  correctly.  When  the  decision  in  Ogden  v. 
Saunders  was  made,  Livingston  had  given  place  to  Thomp- 
son. But  five  of  the  judges,  including  Marshall  and  Story, 
were  the  ones  who  decided  Sturges  v.  Crowninshield. 

The  dissenting  opinion  of  Marshall  in  Ogden  v.  Saunders, 
if  not  his  masterpiece,  was  one  of  the  ablest  efforts  of  his 
life.  If  Johnson  had  stated  this  history  of  his  own  views 
and  the  report  incorrectly,  neither  Story  nor  Marshall 
could,  or  would,  have  permitted  it  to  pass  unnoticed.  The 
simple  truth  is,  that  the  dissenting  opinion  in  Ogden  v. 
Saunders,  in  its  general  reasoning,  is  identical  with  that  in 
those  cases  ;  but  the  majority  of  the  court,  in  this  case, 
shrank  from  the  logical  consequences  of  that  reasoning,  as 
they  did  in  Charles  Eiver  Bridge  v.  Warren  Bridge,  11 
Pet.  420.  By  releasing  all  posterior  contracts  from  the 
protection  of  the  obligation  clause,  this  decision  changed. 
Judge  Marshall  said,  "  the  character  of  the  provision,  and 
converted  an  inhibition  to  pass  laws  impairing  the  obligation 
of  contracts  into  an  inhibition  to  pass  retrospective  laws." 
Had  the  fathers  first  adopted  a  clause  prohibiting  all  retro- 
spective laws,  it  is  impossible  to  believe  that  they  would 
have  added  to  it  the  inferior  prohibition  of  the  obligation 
clause. 


CHAPTER    XIII. 

JUDGE  WASHINGTON  — HIS  OPINION  —  GOLDEN  v.  PKINCE  — 
RESTS  HIS  DECISION  ON  FLETCHER  v.  PECK,  AND  PHILLIPS 
V.  BURY  — LEGISLATIVE  POWER  OVER  PUBLIC  CORPORA- 
TIONS—OGDEN  V.  SAUNDERS. 

Judge  Washington  died  November  26,  1829,  some  ten 
years  after  the  decision  in  the  College  case.  Judge  Story 
says  he  was  born  June  5,  1762,  but  others  say  at  an  earlier 
period.  He  was  the  nephew  of  General  Washington  ;  read 
law  in  Philadelphia  after  the  close  of  the  war  ;  was  admitted 
to  the  bar  in  his  native  county,  in  Virginia,  and  afterwards 
resided  at  Richmond  and  Alexandria.  In  1787  he  was  a 
member  of  the  lower  branch  of  the  Virginia  Legislature  ; 
and  in  1788,  sat  with  Marshall  in  the  Convention  which 
ratified  the  Federal  Constitution.  At  the  bar  he  was  often 
pitted  against  Marshall,  Campbell,  and  other  prominent 
lawyers.  He  reported  the  decisions  of  the  Court  of  Ap- 
peals from  1792  to  1796.  In  these  two  volumes  he  briefly 
reported  his  own  arguments  and  those  of  Marshall,  etc. 
On  September  29,  1798,  John  Adams,  after  hesitating  for 
some  time  as  to  whether  Washington  or  Marshall  should 
receive  the  appointment,  nominated  him  to  fill  the  vacancy 
on  the  Supreme  Bench  created  by  the  death  of  Judge 
Wilson.  The  nomination  was  confirmed,  December  20, 
1798,  and  he  held  the  office  till  his  death. 

In  his  letter  to  Fay,  of  1808,  from  which  we  have  already 
quoted,  Judge  Story  says  :  "  Washington  is  of  a  very  short 
stature,  and  quite  boyish  in  his  appearance.  Nothing  about 
him  indicates  greatness.  He  converses  with  simplicity  and 
frankness.  But  he  is  highly  esteemed  as  a  profound  lawj'^er, 
and  I  believe  not  without  reason.     His  written  opinions  are 

(317) 


318  DARTMOUTH  COLLEGE  CAUSES. 

composed  with  ability,  and  on  the  bench  he  exhibits  great 
promptitude  and  firmness  in  decision .  It  requires  intimacy 
to  value  him  as  he  deserves." 

Professor  Goodrich  (1  Life  of  Webster,  171)  thus 
describes  him  in  the  scene  which  transpired  during  the 
delivery  of  Webster's  peroration  in  the  College  case,  in 
1818:  "Mr.  Chief  Justice  Marshall,  with  his  tall,  gaunt 
figure,  bent  over  as  if  to  catch  the  slightest  whisper,  the 
deep  furrows  of  his  cheeks  expanded  with  emotion,  and  his 
eyes  sufiused  with  tears  ;  Mr.  Justice  Washington  at  his 
side,  with  his  small  and  emaciated  frame,  and  countenance 
more  like  marble  than  I  ever  saw  on  any  other  human 
being,  leaning  forward  with  an  eager,  troubled  look." 

His  appearance  was  not  deceptive.  He  was  in  no  sense 
a  great  man  or  judge,  but  in  every  sense  a  good  one.  He 
was  not  an  original  thinker,  nor  a  man  of  genius.  He  was 
neither  quick,  brilliant,  nor  profound.  But  he  had  fair 
abilities  ;  his  mental  powers  were  evenly  developed,  har- 
monious, and  worked  in  unison  ;  he  was  conscious  —  for  he 
expressed  it  in  his  opinions  —  that  he  was  unable  to  convey 
to  the  minds  of  others  the  full  force  of  his  convictions,  and 
his  reasons  for  them ;  he  was  sometimes  oppressed  with 
Eldon's  doubts,  without  Eldon's  infirmity  of  procrastina- 
tion ;  seldom  able  to  satisfy  himself ;  patience  and  pains- 
taking became  with  him  a  religious  duty,  though  after  Story 
came  to  the  bench  he  relied  to  a  great  extent,  for  authorities, 
on  the  abstracts  and  cases  furnished  by  him,  as  did  others. 
The  fear  of  men  and  of  consequences  he  never  felt ;  the 
approbation  of  a  "  faithful  few"  was  dear  to  his  heart,  but 
the  praise  of  others  fell  on  non-receptive  ears.  He  had  an 
inborn  and  unconquerable  aversion  to  every  form  of  display  ; 
in  every  thing  he  was  slow,  steady,  and  reliable.  As  a 
jurist,  he  was  conservative,  and,  in  general,  submissive  to 
precedent.  He  was  an  old-school  Federalist,  firm  and 
decided,  but  tolerant  of  those  whom  he  thought  sincere  in 
their   support  of  Anti-Federalist   heresies.      He   was   the 


JUSTICE    WASHINGTON.  319 

specially  intimate  and  devoted  friend  of  Marshall,  and 
shared  his  notions  relating  to  the  "  dignity  of  the  court," 
and  individual  opinions  ;  and  in  learning,  he  far  exceeded 
him. 

John  Adams,  though  possessing  unfortunate  peculiarities 
of  temper,  was  a  great  lawyer,  and  far  surpassed  in  original 
genius  all  his  gifted  descendants.  When  he  came  to  con- 
sider the  appointment  in  1798,  he  fixed  upon  Marshall  or 
Washington  as  the  successor  of  Judge  Wilson,  saying : 
"  Marshall  is  first  in  rank,  age,  and  public  services,  and  prob- 
ably not  second  in  talents.  *  *  *  jf  Marshall  should 
decline,  I  should  think  next  of  Washington."  Jefferson,  in 
his  letter  to  Dr.  Rush,  of  September  23,  1800,  suggested  as 
an  illustration  of  the  true  "  mode  of  recording  merit,"  that 
"  in  giving,  for  instance,  a  commission  of  chief  justice  to 
Bushrod  Washington,  it  should  be  in  consideration  of  his 
integrity,  and  science  in  the  laws,"  etc  Washington  was  one 
of  the  judges  who  concurred  in  the  judgment  in  Fletcher  v. 
Peck,  though  upon  what  precise  ground,  his  opinions  in  the 
College  case  and  Satterlee  v.  Matthewson,  2  Pet.  413-415, 
render  uncertain.  He  was  the  only  one  of  the  seven  judges 
who  sat  in  the  College  case  that  is  known,  ' '  upon  the  whole," 
to  have  ' '  concurred  in  the  result ' '  at  which  Marshall  had 
arrived,  at  the  consultation,  after  the  case  was  argued  in 
1818. 

His  opinion,  which  we  have  seen  was  never  delivered, 
occupies  about  ten  and  one-half  pages  in  Farrar,  —  about  one- 
sixth  the  space  taken  by  Marshall  and  Story.  It  difiers 
materially  from  the  others.  To  this,  and  its  author's  deep 
sense  of  duty,  we  are  undoubtedly  indebted  for  its  publica- 
tion, while  we  owe  its  brevity  to  the  fact  that  he  was  never 
given  to  writing  essays  on  government  or  etiquette,  like 
Marshall,  nor  lectures  or  treatises  on  legal  topics,  like 
Story. 

On  the  first  page  of  his  opinion  he  disposes  summarily  of 
the  elaborate  arguments  of  Mason  and  Smith  upon  those 


320  DARTMOUTH  COLLEGE  CAUSES. 

points  before  the  State  court,  and  three-fourths  of  that  of 
Webster  before  the  Supreme  Court,  saying :  "  Whether  the 
first  objection  to  these  laws  be  well  founded  or  not  is  a  ques- 
tion with  which  this  court  in  this  case  has  nothing  to  do." 

The  contrast  between  the  following  opinion  and  that  of 
Marshall  in  Sturges  v.  Crowninshield  is  very  marked  :  — 

Golden  v.  Prince  (3  Wash.  Cir.  Ct.  313-327)  was  decided 
by  Judge  Washington  at  the  April  term,  1814,  and  pub- 
lished in  1827.  It  was  an  action  on  a  bill  of  exchange  drawn 
by  the  defendant,  May  10,  1810,  at  St.  Bart's,  for  value 
received  there,  in  favor  of  the  plaintiff,  on  himself,  and  by 
him  duly  accepted,  etc.  The  suit  was  brought  May  4,  1812, 
and  the  defendant  pleaded  his  discharge  under  a  statute  of 
Pennsylvania  for  the  relief  of  insolvent  debtors,  passed 
March,  13, 1812,  under  which,  upon  his  petition,  of  April  20, 
1812,  he  had  provisionally  obtained  his  certificate  of  discharge 
on  April  23,  and  finally  on  May  29, 1812.  No  notice  of  the 
petition  had  been  given  the  plaintiff  or  his  agents,  nor  had  the 
plaintiff  proved  his  debt  under  these  proceedings. 

The  statute  declared  that  the  certificate  should  discharge 
such  insolvent  from  all  debts  and  demands  due  from  him,  or 
for  which  he  was  liable  at  the  date  of  such  certificate,  and 
also  from  all  contracts  originating  before  that  date  though 
payable  afterwards. 

The  court  held  :  ' '  The  exercise  of  the  power  by  the  State 
governments,  to  pass  bankrupt  and  naturalization  laws,  is 
incompatible  with  the  grant  of  a  power  to  Congress,  to  pass 
uniform  laws  upon  the  same  subjects. 

The  law  of  Pennsylvania  of  13th  of  March,  1812,  is 
unconstitutional,  because  it  impairs  the  obligation  of  a 
contract,  and  because  Congress  have  exclusively  the  power 
to  pass  a  bankrupt  law." 

In  his  opinion  he  says:  "It  maybe  proper  to  premise 
that  a  law  may  be  unconstitutional,  and,  of  course,  void, 
in  relation  to  particular  cases  ;  and  yet  valid,  to  all  intents 


GOLDEN    r.  PRINCE OBLIGATION    CLAUSE.  321 

and  purposes,  in  its  application  to  other  cases  within  the  scope 
of  its  provisions,  but  varying  from  the  other  in  particular 
circumstances.  Thus,  a  law  prospective  in  its  operation, 
under  which  a  contract  afterwards  made  may  be  avoided  in 
a  way  different  from  that  provided  by  the  parties,  would 
be  clearly  constitutional ;  because  the  stipulations  of  the 
parties,  which  are  inconsistent  with  such  a  law,  never  had  a 
legal  existence,  and  of  course  could  not  be  impaired  by  the 
law.  But  if  the  law  act  retrospectively,  as  to  other  con- 
tracts, so  as  to  impair  their  obligation,  the  law  is  invalid ; 
or,  in  milder  terms,  it  affords  no  rule  of  decision  in  these 
latter  cases.     *     *     * 

"  What  is  the  obligation  of  a  contract?  It  is  to  do,  or  not 
to  do,  a  certain  thing ;  and  this  may  be  either  absolutely, 
or  under  some  condition  ;  immediately,  or  at  some  future 
time  or  times  ;  and  at  some  specified  place,  or  generally. 
A  law,  therefore,  which  authorizes  the  discharge  of  a  con- 
tract, by  a  smaller  sum,  or  at  a  different  time,  or  in  a 
different  manner  than  the  parties  have  stipulated,  impairs 
its  obligation,  by  substituting  for  the  contract  of  the  i^arties 
one  which  they  never  entered  into,  and  to  the  performance 
of  which  they  of  course  had  never  consented.  The  old 
contract  is  completely  annulled,  and  a  legislative  contract 
imposed  upon  the  parties  in  lieu  of  it.     *     *     * 

"  But  it  was  contended,  that,' if  Congress  shall  decline  to 
exercise  the  power  [to  pass  uniform  laws  of  bankruptcy] , 
the  right  to  pass  such  laws  results  to  the  State  govern- 
ments. This  conclusion  appears  to  us  to  beg  the  whole 
question  in  controversy.  It  resigns  all  claim  to  a  con- 
current rigid  in  the  State  governments,  and  sets  up  one 
which  is  to  arise  in  a  condition  not  to  be  found  in  the  Con- 
stitution, but  which  is  gratuitously  interpolated  into  it. 

"If,  then,  this  claim  of  the  State  legislatures  is  not  founded 
upon  any  express  grant  made  to  them  in  the  Constitution, 
is  it  to  be  deduced  from  the  circumstance  of  a  non-user 

21 


322  DARTMOUTH  COLLEGE  CAUSES. 

of  the  power  by  Congress  ?  This  doctrine  appears  to  us  to 
be  as  extravagant  as  it  is  novel.  It  has  no  analogy,  thar^ 
we  know  of,  in  legal  or  political  science.     *     *     * 

<'  We  desire  that  it  may  be  distinctly  understood  that  we 
do  not  mean  to  give  any  opinion  on  the  subject  of  insolvent 
laws,  acts  of  limitation,  and  the  like,  because  they  are 
not  now  before  us  ;  and  sufficient  to  the  day  is  the  evil 
thereof." 

He  seeks  to  show,  in  the  next  two  and  one-half  pages  of 
his  opinion,  that  the  charter  was  a  contract. 

His  argument  is,  that  Mr.  Powell's  definition  is  broad 
enough  to  cover  executed  contracts  ;  that  Fletcher  v.  Peck 
had  decided  "that  a  grant  is  a  contract,"  and  that  the 
clause  applies  alike  to  executory  and  executed  contracts ; 
that,  under  Blackstone's  definition  of  a  franchise,  the  cre- 
ation of  this  corporation  by  charter  was  such  a  contract, 
and  extinguished  the  king's  prerogative  to  bestow  the  same 
identical  franchise  on  another  corporate  body,  because  it 
would  prejudice  his  prior  grant. 

He  then  says :  "It  implies,  therefore,  a  contract  not  to 
reassert  the  right  to  grunt  the  franchise  to  another,  or  to 
impair  it."  This  is  the  identical  proposition  afterwards 
relied  upon  by  Stor}^  but  overturned  by  a  majority  of  the 
court,  in  the  great  Bridge  case.  Its  meaning  is  sufficiently 
obvious,  but  it  seems  never  to  have  occurred  to  Washington 
that  this  reasoning  fell  far  short  of  what  was  necessary. 
He  was  discussing  a  principle  of  English  law  in  the  light 
thrown  upon  it  by  a  British  author.  Assuming  that  the 
king,  whenever  he  granted  a  franchise,  despoiled  himself  of 
the  power  to  re-grant  it,  or  to  impair  its  value  by  a  new  cre- 
ation under  a  fresh  patent,  he  could  neither  expressly,  nor  by 
implication,  annitiilate  the  conceded  power  of  Parliament  to 
do  as  it  pleased.  Parliament  had  granted,  and  in  many 
instances  had  altered  and  amended,  charters.  The  king  had 
no  power  to  tie  their  hands,  except  by  veto.  Even  thore 
who  believe  that  under  a  constitutional  form  of  ijovernment 


INSOLVENT   LAWS  —  POWER   OF   PARLIAMENT.  32tJ 

the  attributes  of  sovereignty  are  mere  articles  of  merchan- 
dise, to  be  bartered  away  at  pleasure,  and  that  legislative 
bodies  are  "markets-overt"  for  that  purpose,  will  hardly 
claim  that  the  executive  department  can  extinguish  the  veto 
power,  present  and  future,  by  contract.  If  it  were  other-- 
wise,  the  king,  by  contract,  might  extinguish  the  powers  of 
the  nation  bj' thus  strangling  the  two  great  estates  of  the 
realm. 

He  further  says  :  "There  is  also  an  implied  contract,  that 
the  founder  of  a  private  charity,  or  his  heirs,  or  other  per- 
sons appointed  by  him  for  that  purpose,  shall  have  the  right 
to  visit  and  to  govern  the  corporation  of  which  he  is  the 
acknowledged  founder  and  patron,  and  also,  that  in  case  of 
its  dissolution,  the  reversionary  right  of  the  founder  to  the 
property  with  which  he  had  endowed  it  shall  be  preserved 
inviolate."  John  Wheelock,  as  we  have  seen,  was  the  prin- 
cipal heir  of  Eleazar,  who  founded  the  charity-school.  The 
proposition  contained  in  the  last  clause  quoted  was,  as  we 
have  seen,  assumed  on  all  hands,  in  the  State  court,  to  be 
correct.  There  are  authorities  which  fully  sustain  it ;  but, 
stated  in  these  broad  terms,  it  has,  we  apprehend,  little 
foundation  in  principle.  In  general,  the  death  of  a  trustee 
does  not  annihilate  the  trust,  nor  hand  the  fund  over  to  the 
creator  or  his  heirs.  Chancery  supplies  a  new  trustee,  and 
the  blessings  of  the  trust  flow  on.  Corporations  in  England 
were  liable  to  die,  as  well  as  individuals.  Sometimes  Par- 
liament and  sometimes  the  courts  acted  as  headsmen. 

He  thus  states  the  consideration  of  such  grants  :  ' '  The 
obligation  imposed  upon  them  [the  grantees]  and  which 
forms  the  consideration  of  the  grant  is,  that  of  acting  up  to 
the  end  or  design  for  which  they  were  created  by  their 
founder."  And  finally  says  :  "It  apf)ears  to  me,  upon  the 
whole,  [words  which  he  afterwards  repeats  in  relation  to  the 
judgment,]  that  these  principles  and  authorities  prove  in- 
controvertibly,  that  a  charter  of  incorporation  is  a  contract." 

It  would  seem,  from  this,  that  the  naked  grant  is  not  pro- 


324  ,  DARTMOUTH  COLLEGE  CAUSES. 

tected  ;  or,  if  it  is,  is  so  only  so  far  as  that  may  result  from 
these  implied  obligations. 

But  Mr.  Webster,  in  his  great  argument  in  the  Bridge 
case,  before  the  Supreme  Court  of  Massachusetts  (7  Pick. 
437),  says:  "The  legislature  cannot  grant  what  they  do 
not  possess.  The  confusion  in  this  case  arises  from  consid- 
ering these  acts  of  the  Legislature  as  laws,  whereas  they  are 
grants,  which  are  wholly  different.  A  law  is  a  rule  pre- 
scribed for  the  government  of  the  subject ;  a  grant  is  a 
donation." 

Of  course,  it  would  seem  strange  only  to  non-professional 
eyes  that  absolute  donations  are  contracts  ;  though  they 
might  be  puzzled  to  understand  why  the  gift  itself  was  of 
so  little  consequence,  and  the  implied  contract  was  of  such 
vast  importance. 

Washington  devotes  the  remaining  six  pages  to  show 
that  the  enactments  in  question  did  "  impair  this  contract." 
In  proceeding  "  to  mark  the  distinction  between  the  different 
kinds  of  lay  aggregate  corporations,  in  order  to  prevent  any 
implied  decision  by  this  court  of  any  other  case  than  the 
one  immediately  before  it,"  he  says  :  "  We  are  informed  by 
the  case  of  Phillips  v.  Bury,  which  contains  all  the  doctrines 
of  corporations  connected  with  this  point,  that  there  are  two 
kinds  of  corporations  aggregate,  viz.,  such  as  are  for  public 
government,  and  such  as  are  for  private  charity.  *  *  * 
There  is  not  a  case  to  be  found  which  contradicts  the  doc- 
trine laid  down  in  the  case  of  Phillips  v.  Bury,"  —  summariz- 
ino;  the  dicta  in  that  case.  "  Such  legislative  interferences 
[altering,  etc.,  the  charters  of  public  corporations]  cannot 
be  said  to  impair  the  contract  by  which  the  corporation  was 
formed,  because  there  is  in  reality  but  one  party  to  it,  the 
trustees  or  governors  of  the  corporation  being  merely  the 
trustees  for  the  public,  the  cestui  que  ti-ust  of  the  foundation. 
The  trustees  or  governors  have  no  interest,  no  privileges  or 
immunities,  which  are  violated  by  such  interference,  and  can 
have  no  more  right  to  complain  of  them  than  an  ordinary 


DONATIONS  ASSUMED  TO  BE  CONTRACTS.       325 

trustee  who  is  called  upon  in  a  court  of  equity  to  execute 
the  trust.  They  accepted  the  charter  for  the  public  l)enefit 
alone,  and  there  would  seem  to  be  no  reason  why  the  gov- 
ernment, under  proper  limitations,  should  not  alter  or 
modify  such  a  grant  at  pleasure.  *  *  *  Jn  short,  does 
not  every  alteration  of  a  contract,  however  unimportant, 
even  though  it  be  manifestly  for  the  interest  of  the  party 
objecting  to  it,  impair  its  obligation?" 

To  sustain  the  distinction  between  public  and  private  cor- 
porations, he  cites  the  opinion  of  the  majority  of  the  court 
in  Terrett  v.  Taylor,  saying:  "In  respect  to  public  cor- 
porations which  exist  only  for  public  purposes,  such  as 
towns,  cities,  etc.,  the  Legislature  may,  under  proper  limita- 
tions, change,  modify,  enlarge  or  restrain  them,  securing, 
however,  the  property  for  the  use  of  those  for  whom,  and 
at  whose  expense,  it  was  purchased." 

We  shall  hereafter  see  what  weight  is  to  be  attached  to 
Phillips  V.  Bury. 

In  concluding,  he  holds  that  whether  Dr.  Wheelock  was 
the  founder  or  not  would  make  no  difference  with  the  deci- 
sion. He  cites  but  few  authorities,  and  those,  aside  from 
Phillips  V.  Bury,  Fletcher  v.  Peck,  and  Terrett  v.  Taylor, 
etc.,  of  no  special  pertinence.  It  may  deserve  consideration 
whether  his  doctrine  in  relation  to  trustees  of  public  corpora- 
tions does  not,  in  the  al^sence  of  particular  constitutional 
provisions  or  special  regulations,  appl}^  to  all  corporations. 

The  decisions  in  the  American  courts  as  to  the  power  of 
the  legislature  over  what  are  termed  public  corporations 
are  diametrically  opposed  to  each  other.  Even  that  great 
master  of  the  law  of  municipal  corporations,  Judge  Dillon, 
can  neither  reconcile  them  nor  invent  a  common  ground 
upon  which  they  can  stand.  One  class  of  cases  holds  that 
the  legislature  has  not  only  absolute  power  over  municipal 
corporations,  but  over  their  property ;  another  class  holds 
that  such  coi'porations  have  a  dual  nature,  —  are  legal  her- 
maphrodites ;  that  the   public  side,  being  the  creature  of 


326  DARTMOUTH   COLLEGE    CAUSES. 

legislative  breath,  can  be  annihilated  by  the  same,  Imt  that 
the  private  part  is  in  eiFect  an  individual,  suspended,  like 
Mahomet's  coffin,  somewhere  between  the  heavens  and 
the  earth,  under  the  protection  of  the  courts,  and  more 
especially  of  the  obligation  clause. 

The  Supreme  Court  of  New  Hampshire,  in  a  recent  case 
(Spauldingv.  Andover,  54  N.  H.  38),  carried  the  reasoning 
of  Washington  and  the  authorities  on  which  he  relied  to 
their  logical  consequences,  and  held,  in  eifect,  that  a  legis- 
lature could,  through  a  public  statute,  contract  by  implica- 
tion with  a  town,  and  that  that  contract  was  protected  against 
all  subsequent  enactments  by  the  obligation  clause,  the  same 
as  if  the  State  had  contracted  with  an  individual. 

At  the  February  term,  1824,  five  years  after  the  decision 
in  the  College  case,  Ogden  v.  Saunders  was  first  argued  by 
Webster  for  Saunders.  This  was  assumpsit  brought  by 
Saunders,  of  Kentucky,  against  Ogden,  of  Louisiana,  upon 
bills  of  exchange,  drawn  on  September  30,  1806,  by  Jordan, 
of  Kentucky,  upon  Ogden,  and  accepted  by  him  in  New 
York,  of  which  State  he  was  at  that  time  a  citizen.  Ogden 
had  been  discharged  under  the  act  of  the  New  York  Legisla- 
ture of  April  3,  1801,  for  the  relief  of  insolvent  debtors 
The  case  having  been  continued  about  three  years  for 
advisement,  was  reargued  by  Webster  at  the  January  term, 
1827.  In  guarded  terms  Washington  thus  states  his  general 
position  with  reference  to  the  decision,  and  the  opinion  of 
Judne  Marshall  in  Sturges  v.  Crowninshield :  "To  the 
decision  of  this  court  made  in  the  case  of  Sturges  v.  Crown- 
inshield, and  to  the  reasoning  of  the  learned  judge  who 
delivered  that  opinion,  I  entirely  submit ;  although  I  did  not 
then,  nor  can  I  now,  bring  my  mind  to  concur  in  that  part 
of  it  which  admits  the  constitutional  power  of  the  State 
Legislatures  to  pass  bankrupt  laws,  by  which  I  understand 
those  laws  which  discharge  the  person  and  the  future  acqui- 
sitions of  the  bankrupt  from  his  debts.  I  have  always 
thought  the  power  to  pass  such  a  law  was  exclusively  vested 


OBLIGATION    CLAUSE STUKGES    V.  CROWNINSHIELD.       327 

by  the  Constitution  in  the  Lcgishiture  of  the  United  States. 
But  it  becomes  me  to  believe  that  this  opinion  was,  and  is, 
incorrect,  since  it  stands  condemned  by  the  decision  of  a 
majority  of  this  court,  solemnly  pronounced."  (12  Wheat. 
2G4,  265.)  He  adds  :  "  This  leads  us  to  a  critical  examina- 
tion of  the  particular  phraseology  of  that  part  of  the  above 
section  which  relates  to  contracts.  It  is  a  law  which  impairs 
the  ol)ligation  of  contracts,  and  not  the  contracts  themselves, 
which  is  interdicted.  It  is  not  to  be  doubted  that  this  term, 
obligation,  when  applied  to  contracts,  was  well  considered 
and  weighed  by  those  who  framed  the  Constitution,  and  was 
intended  to  convey  a  different  meaning  from  what  the  pro- 
hibition would  have  imported  without  it."  ( 12  Wheat.  257. ) 
"  The  universal  law  of  all  civilized  nations,  which  declares 
that  men  shall  perform  that  to  which  they  have  agreed,  has 
been  supposed,  by  the  counsel  who  have  argued  this  cause 
for  the  defendant  in  error,  to  be  the  law  which  is  alluded  to  ; 
and  I  have  no  objection  to  acknowledging  its  obligation, 
whilst  I  must  deny  that  it  is  that  which  exclusively  governs 
the  contract.  It  is  upon  this  law  that  the  obligation,  which 
nations  acknowledge  to  perform  their  compacts  with  each 
other,  is  founded,  and  I,  therefore,  feel  no  objection  to 
answer  the  question  asked  by  the  same  counsel,  —  what 
law  it  is  which  constitutes  the  obligation  of  the  compact 
between  Virginia  and  Kentucky,  —  by  admitting  that  it 
is  this  common  law  of  nations  which  requires  them  to  per- 
form it.  I  admit,  further,  that  it  is  this  law  which  cre- 
ates the  obligation  of  a  contract,  made  upon  a  desert  spot, 
where  no  municipal  law  exists,  and  (which  was  another  case 
put  by  the  same  counsel)  which  contract,  by  the  tacit  assent 
of  all  nations,  their  tribunals  are  authorized  to  enforce." 
(12  Wheat.  258. )  "  It  is  then  the  municipal  law  of  the  State, 
whether  that  be  written  or  unwritten,  which  is  emphatically 
the  law  of  the  contract  made  within  the  State,  and  must  irov- 
em  it  throughout,  wherever  its  performance  is  sought  to  be 
enforced."     (12  Wheat.  259.) 


CHAPTER    XIY. 

JUDGE  STOKY  — EARLY  HISTORY  —  POLITICAL  LIFE  —  AP- 
POINTED TO  THE  BENCH  —  CHANGE  OF  POLITICAL  OPINIONS 
—  INTIMACY  WITH  PLUMER  — LIFE  ON  THE  BENCH  —  CONSTI- 
TUTIONAL LAW  — CONTEST  WITH  CHIEF  JUSTICE  PARKER- 
DECIDES  THE  COLLEGE  CAUSES  IN  THE  CIRCUIT  COURT— 
THE  BOWDOIN  COLLEGE  CASE  — DEFINES  PUBLIC  CORPO- 
RATIONS—VISITATORIAL  POWER— ARGUMENT  OF  HOPKLN- 
SON  — GRAFTED,  RAISED,  AND  SUBSTITUTIONARY  FOUNDA- 
TIONS—PHILLIPS V.  BURY  —  ARGUMENT  OF  STILLING- 
FLEET  — THE   CHARLES  RIVER  BRIDGE  CASE. 

Judge  Story  was  about  thirty-nine  years  of  age  when  he 
drew  up  his  last  opinion  in  the  College  case.  This  great 
lawyer  was  born  at  Marblehead,  Massachusetts,  September 
18,  1779.  He  graduated  at  Harvard  in  1798,  read  law  at 
home  with  Judge  Sewall  from  that  time  till  January,  1801, 
when  he  removed  to  Salem,  and  read  with  Judge  Putnam 
till  he  was  admitted  to  the  bar,  in  July  of  the  same  year. 
He  was  a  member  of  the  lower  house  for  the  years  1805- 
8  ;  was  reelected  in  1810-11  ;  was  speaker  during  his  last 
term,  until  he  resigned,  January  17,  1812,  to  take  his  place 
upon  the  Supreme  Bench,  which  office  he  held  until  his  death, 
which  occurred  September  10,  1845.  In  1806-8  he  sup- 
ported the  embargo  with  marked  ability,  and  in  1808  was 
elected  to  Congress,  and  became  the  most  efficient  instru- 
ment of  its  repeal.  His  mental  and  physical  constitution 
were  both  of  the  most  elastic  character.  Without  a  stain  of 
impurity,  he  had  an  ardent  social  nature  ;  was  open,  lavish 
in  his  kindliness  to  those  he  liked,  and  was  a  most  delightful 
companion,  even  when,  in  later  years,  he  sometimes  wearied 
with  his  egotism,  as  he  warmed  with  the  recital  of  his  early 
(328) 


JUDGE    STORY LAW    LECTURER LABORS.  329 

combats,  "shouldered  his  crutch,  and  showed  how  fields 
were  won."  From  childhood  he  was  ambitious  beyond 
measure,  and  determined  to  be  "  the  captain  or  nothing  ;  " 
he  was  as  proud  of  his  plumage  as  any  bird  or  woman,  and 
as  sensitive  and  sore  as  either,  when  it  appeared  to  him  that 
any  attempt  had  been  made  to  mar  or  despoil  it.  If  such 
attempts  were  in  any  degree  successful,  though  he  some- 
times forgave,  he  seldom  tolerated  the  presence  of  their 
authors,  and  never  forgot  them,  or  ceased  to  feel  the  smart. 
Swift  of  apprehension,  he  read  every  thing,  remembered  it, 
put  it  away  in  order,  and  held  it  at  all  times  at  his  command. 
In  orderly  industry  and  power  of  application  he  had  no  rival 
at  the  bar  or  on  the  bench.  His  power  for  the  acquisition 
of  knowledge  bordered  upon  the  marvellous ;  he  was  as 
busy  as  the  "  fatal  sisters  ;"  he  laid  all  under  contribution  ; 
he  was  the  Amazon  which  made  tributary  every  rill  of  per- 
sonal anecdote  or  political  gossip. 

As  a  law-lecturer  there  never  was  his  like  ;  he  was  a  full 
reservoir ;  ready,  fluent,  and  never  hesitating  for  a  word, 
the  flood  poured  at  command,  as  zesty  and  sparkling  as  a 
river  of  champagne.  He  had  all  that  New  England  shrewd- 
ness and  practical  judgment  in  business  matters  and  the 
common  aff*airs  of  life  which  Marshall  so  much  lacked. 
No  sane  man  was  likely  to  tell  the  ' '  sapling  story  ' '  at  his 
expense.  He  was  a  born  politician  and  manager  of  men  ; 
he  knew  every  phase  of  human  nature,  and  how  to  deal 
with  it.  When  the  occasion  required,  he  had  the  courage 
of  his  opinions  as  but  few  men  have. 

His  labors  were  almost  incredible.  Besides  other  duties, 
which  were  enough  to  crush  most  men,  he  framed  many 
of  the  most  important  acts  ever  adopted  by  Congress  or 
pressed  upon  its  attention,  — the  credit  of  which  was  usually 
taken  by  others,  —  and  for  thirty-three  years  turned  out 
decisions,  opinions,  volumes  of  reports,  and  huge  treatises 
upon  legal  topics,  with  the  velocity  of  a  patent  machine. 
He  was  the  great  source  of  legal    and  political  learning 


330  DARTMOUTH  COLLEGE  CAUSES. 

from  which  Webster,  and  others  scarcely  less  noted,  drew, 
in  their  debates  in  Congress  and  elsewhere.  His  opinions 
will  probably  stand  higher,  in  the  hereafter,  than  his  text- 
books, except  his  works  on  the  "  Conflict  of  Laws"  and 
the  "  Constitution." 

Many  of  his  earlier  opinions  in  the  Circuit  Court  are 
invaluable.  They  are  replete  with  learning  and  tilled  with 
light.  His  opinions  in  the  vast  fields  of  jurisprudence, 
involving  private  rights,  were  generally  well  founded  ;  but 
where  some  protege  of  his  was  to  be  affected,  either  as 
counsel  or  suitor,  where  the  construction  of  some  pet 
statute  framed  by  him  was  involved,  or  where  certain 
constitutional  questions  were  raised,  he  was  not,  from  his 
peculiar  organization  and  proclivities,  enabled  to  see  things 
as  others  saw  them. 

Whole  chapters  in  some  of  his  books  seem  to  be  little 
more  than  windrows  of  head-notes,  raked  together  as  the 
farmer  rakes  his  hay  in  the  mow-field  ;  but  when  we  survey 
the  ground,  the  wonder  is,  not  that  they  contain  so  many 
imperfections,  but  that  his  work  was  so  well  performed. 

In  1801,  he  went  into  practice  in  Salem,  less  from  choice 
than  because  he  knew  of  nowhere  else  to  go,  and  in  a  little 
more  than  ten  years  was  elevated  to  the  Supreme  Bench. 
For  three  or  four  years  his  practice  was  quite  limited, 
because  branded  for  his  political  and  religious  views  by  the 
Federal  aristocracy  among  whom  he  had  cast  his  lot. 

Few  who  know  the  New  England  of  to-day  can  realize 
the  despotic  power  of  this  autocracy  in  Story's  youth  and 
early  manhood,  unless  they  have  felt  it  themselves,  or  been 
reared  in  the  atmosphere  and  traditions  of  those  who  have. 
Its  heart  was  in  the  larger  places,  but  its  influence  radiated 
to  almost  every  town  and  hamlet  in  New  England.  Web- 
ster had  a  vivid  appreciation  of  its  sway  when  he  wrote  to 
Porter,  on  June  4,  1802:  "It  [Federalism]  unites  in  its 
support  more  than  two-thirds  of  the  talent,  the  character, 
and  the  property  of  the  nation.     This  is  too  much  for  any 


FEDERAL   ARISTOCRACY DR.  STORr.  331 

administration  to  contend  with ; ' '  and  when  he  cautioned 
his  wife,  the  gentle  and  winning  Grace,  upon  her  visit  to 
his  native  town,  to  pay  due  attentioAi  to  "the  Salisbury 
quality.''  It  varied  in  its  components  according  to  locali- 
ties, but  in  essence  it  was  the  same  everywhere.  It  was 
agglomerate  in  its  nature,  but  courtly,  well  dressed,  and 
immensely  dignified.  It  was  a  religious  and  political  aris- 
tocracy united  with  one  of  birth,  lineage,  wealth,  culture, 
and  talent.  A  young  man  of  genius,  poor  and  ambitious, 
was  received  by  it  with  imposing  dignity  and  a  lofty 
courtesy;  and  if  properly  submissive,  in  time,  by  its  aid, 
might  hope  to  be  "somebody."  But  if  he  dared  in  religious 
and  political  matters  to  do  his  own  thinking,  he  was  tabooed 
in  social  and  business  life  ;  the  ' '  freezing-out ' '  process  was 
resorted  to  ;  and  when  that  failed,  he  was  surrounded  with 
a  cordon  of  fire,  and  left  to  sufi'ocate. 

Even  at  a  later  day,  Worcester,  the  favorite  preacher 
of  Judge  Webster  as  well  as  Daniel,  sufiered  martyrdom 
because  he  believed  with  Channing.  So  long  as  he  drifted 
with  the  tide,  even  through  the  turmoils  of  the  College 
controversy,  all  was  well ;  but  when  he  looked  back  toward 
Unitarianism,  a  fate  less  merciful  than  that  of  Lot's  wife 
befel  him.  With  exceptional  cases,  few  natures  were  hardy 
and  self-reliant  enough  to  mthstand  the  pressure. 

Dr.  Story  was  a  man  of  ability,  an  Anti-Federalist  of  the 
most  decided  stamp.  He  took  the  side  of  Jefierson.  The 
son,  impulsive,  warm-hearted,  and  devoted  to  his  father, 
inherited  the  latter' s  views  and  convictions,  and,  in  conse- 
quence, became  very  unpopular,  was  ostracised,  and  treated 
with  such  ofiensive  personalities  that  he  seriously  contem- 
plated a  removal  to  Portsmouth,  New  Hampshire,  or  Balti- 
more, Maryland,  to  escape  this  persecution.  In  his  later 
years,  after  he  had  taken  the  long  stride  from  the  school 
of  Jefi'erson  to  that  of  Jay,  and,  in  consequence,  had  become 
the  idol  of  those  who  had  once  sought  to  destroy  him,  with 
his  feelings  mellowed  by  time  and  his  associations,  he  gives 


332  DARTMOUTH    COLLEGE    CAUSES. 

US  this  portraiture  of  his  persecution  :  "At  the  time  of  my 
admission  to  the  bar,  I  was  the  only  lawyer  within  its  pale 
who  was  either  openly  or  secretly  a  Democrat.  Essex  was, 
at  that  time,  almost  exclusively  Federal,  and  party  politics 
were  inexpressibly  violent.  I  felt  many  discouragements 
from  this  source.  *  *  *  Xo  young  men  with  my  political 
opinions,  the  times  were  very  discouraging.  My  father  was 
a  Republican,  as  contradistinguished  from  a  Federalist,  and 
I  had  naturally  imbibed  the  same  opinions.  In  Massa- 
chusetts, at  that  period,  an  immense  majority  of  the  people 
were  Federalists.  All  the  offices  (with  scarcely  an  excep- 
tion, I  believe)  were  held  by  Federalists.  The  governor, 
the  judges,  the  Legislature,  were  ardent  in  the  same  cause. 
It  cannot  be  disguised,  too,  that  a  great  preponderance 
of  the  wealth,  the  rank,  the  talent,  and  the  civil  and 
literary  character  of  the  State  was  in  the  same  scale. 
Almost  all  the  profession  of  the  law  were  of  the  party. 
I  scarcely  remember  more  than  four  or  five  lawyers  in  the 
whole  State  who  cZarec?  avow  themselves  Republicans.  The 
very  name  was  odious,  and  even  more  offensive  epithets 
(such  as  '  Jacobins '  )  were  familiarly  applied  to  them.  The 
o^reat  struo-ole  was  over  between  Mi'.  Jefferson  and  Mr. 
Adams,  and  the  former  had  been  chosen  to  the  presidency. 
The  contest  had  been  carried  on  with  great  heat  and  bitter- 
ness ;  and  the  defeated  party,  strong  at  home,  though  not 
in  the  nation,  was  stimulated  by  resentment  and  by  the 
hope  of  a  future  triumph.  Under  such  circumstances, 
there  was  a  dreadful  spirit  of  persecution  abroad.  The 
intercourse  of  families  was  broken  up,  and  the  most  painful 
feuds  were  generated.  Salem  was  a  marked  battle-ground 
for  political  controversies,  and  for  violent  struggles  of  the 
parties.  The  Republican  party  was  at  first  very  small 
there  ;  and  its  gradual  growth  and  increasing  strength,  so 
far  from  mitigating,  added  fuel  to  the  flame. 

"  Such  was  the  state  of  things  at  the  time  when  I  came 
to  the  bar.     All  the  lawyers  and  all  the  judges  in  the  county 


EARLY    POLITICAL    VIIOWS    OF    STORY.  333 

of  Essex  were  Federalists,  and  I  was  the  first  who  was  ob- 
truded upon  it  as  a  political  heretic.  I  was  not  a  little 
discouraged  by  this  circumstance,  and  contemplated  a 
removal  as  soon  as  I  could  find  a  better  position  or  prospect 
elsewhere.  For  some  time  I  felt  the  coldness  and  estrange- 
ment resulting  from  this  known  diversity  of  opinion ;  and 
taking,  as  I  did,  a  firm  and  decided  part  in  politics,  it  was 
not  at  all  wonderful  that  I  should  be  left  somewhat  solitary 
at  the  bar." 

In  his  letter  of  March  30,  1803,  to  Duvall,  afterwards  the 
dissenting  judge  in  the  College  case,  declining  the  position 
of  naval  oflicer  at  Salem,  while  expressing  his  gratitude  for 
the  appointment,  Story  says:  "To  one  just  entering  life, 
without  patronage  or  support  other  than  what  must  be 
derived  from  juridical  pursuits,  and  at  a  period  when  per- 
sons older  in  the  profession  are  so  numerous  as  to  absorb 
almost  all  lucrative  business,  it  was  a  circumstance  peculiarly 
ofrateful.  If  the  extreme  deij-ree  of  virulence  with  which  I 
have  been  persecuted,  in  a  county  where  all  the  judges  and 
lawyers  are  pertinaciously  Federal,  and  the  manifest  at- 
tempts to  close  against  me  the  doors  of  professional  emi- 
nence be  added  to  these  considerations,  you  will  readily 
perceive  that  there  exist  great  inducements  for  me  to  accept 
the  proposed  office,  and  thereby  secure  to  myself  a  moderate 
independence,  and  freedom  from  oppression.  *  *  *  I 
have  long;  had  a  desire  to  mio-rate  southward,  in  order  to 
find  a  situation  in  which  I  should  have  only  to  compete  with 
the  ordinary  obstacles  of  my  profession.  In  your  leisure, 
should  you  recollect  any  situation  favorable  to  my  views, 
the  information  would  be  grateful  to  me." 

Ill  his  letter  of  June  6,  1805,  to  his  classmate  Williams, 
in  Baltimore,  he  says  :  "  Your  account  of  Baltimore  charms 
me.  I  have  long  had  a  desire  to  sojourn  in  some  southern 
clime,  more  congenial  with  my  nature  than  the  petty  pre- 
judices and  sullen  coolness  of  New  England.  Bigoted  in 
opinion,  and  satisfied   in   forms,    you   well  know  that,  in 


334  DARTMOUTH  COLLEGE  CAUSES. 

ruling  points,  they  too  frequently  shut  the  door  against 
liberality  and  literature.  A  man  who  will  hazard  a  noble 
action  is  not  less  exposed  than  certain  notorious  saints  of 
old.  Indeed,  if  I  mistake  not,  the  same  spirit,  under  dif- 
ferent forms,  is  revived,  though  I  have  good  reason  to 
believe  we  have  no  ivitches  amongst  us.  Could  I  obtain 
any  respectable  situation  in  your  pleasant  climate  and 
hospitable  city,  I  hardly  know  how  I  could  refuse  it." 

Notwithstanding  his  after-acquired  dislike  of  "Virginia 
politicians  "  and  the  Southern  people,  he  seems  to  have  re- 
tained his  kindly  feelings  toward  Baltimore,  for,  at  a  later 
day,  he  had  serious  thoughts  of  resigning  his  place  upon  the 
bench  and  taking  the  cast-off  sandals  of  great  Pinkney. 

In  the  letter  from  which  we  have  just  quoted,  he  further 
says  :  "  My  situation  is  pleasant  here,  so  far  as  it  respects 
friends.  The  whole  Republican  party  are  my  warm  ad- 
vocates. Federalism  has  persecuted  me  unremittingly  for 
my  political  principles  ;  but,  as  my  life  has  been  sacredly 
pure,  they  do  little  else  than  accuse  me  of  '  being  a  Bona- 
parte in  modesty  and  ambition.'  Convinced  every  day  more 
and  more  of  the  purity  of  the  Republican  cause,  and  be- 
lieving it  to  be  founded  on  the  immutable  rights  of  man,  I 
cannot  and  will  not  hesitate  to  make  any  sacrifice  for  its 
preservation.  Yes,  my  dear  friend,  though  I  have  suffered 
the  hardness  of  oppression,  I  feel  satisfied  that  at  least  I 
am  not  mistaken  for  a  dependant  or  a  minion."  (1  Life  of 
Story,  95,  106. )  His  practice  steadily  increased  in  his  own 
State,  and  for  some  years,  until  its  more  pressing  duties 
nearer  home  compelled  him  to  relinquish  it,  he  had  a  re- 
spectable business  in  Rockingham  County,  New  Hampshire. 

The  tide  had  turned ;  the  spirit  which  inspired  Thomp- 
son's letter  to  Professor  Adams,  from  which  we  have  already 
quoted,  to  "  put  down  a  certain  man,"  was  baffled  ;  Story 
had  won.  Henceforth  he  became  a  leader  of  his  party,  and 
occupied  that  position  until  he  went  upon  the  bench. 
"  Owing  to  the  fact,"  he  says,  "  that  there  were  few  profes- 


STORY IX    MASSACHUSETTS    LEGISLATURE.  335 

sional  men  in  the  Commonwealth  at  that  time  belongins:  to 
the  Republican  party,  and  of  those  fe^y  scarcely  any  in  the 
Legislature,  I  was  soon  compelled,  notwithstanding  my 
youth,  to  become  a  sort  of  leader  in  debate,  and  I  may  say 
that  I  occupied  that  station  de  facto  during  all  my  legisla- 
tive life." 

His  appointment  to  the  bench  at  the  early  age  of  thirty- 
two  is  not  to  be  ascribed  to  his  merits,  marked  as  they  were. 
It  was  due  to  the  "  accident  of  circumstances."  Judsfe 
Gushing,  a  feeble  old  man,  seventy-seven  years  of  age,  died 
in  1810.  The  position  "belonged,"  in  the  phrase  of  the 
politicians,  to  Massachusetts  proper,  and  to  the  party  in 
political  affiliation  with  the  administration.  The  range  for 
a  proper  selection  there  was  exceedingly  limited.  Nobody 
thought  of  Story.  Mr.  Madison,  who  knew  him  well,  on 
January  3,  1811,  appointed  Levi  Lincoln,  who  had  been  the 
attorney-general  of  Jefferson,  and  the  acting  secretary  of 
state  before  Madison  assumed  the  duties  of  the  office,  to  fill 
the  vacancy,  and  personally  pressed  him  to  accept  it.  But 
Lincoln  was  compelled  to  decline,  because  of  the  blindness 
that  was  creeping  fast  upon  him.  John  Quincy  Adams  was 
appointed  in  the  place  of  Lincoln,  February  22,  1811,  and 
declined  upon  the  ground,  as  is  understood,  that  his  tastes 
and  mind  were  not  judicial,  and  because  he  preferred  to 
retain  the  position  which  he  then  held  as  ambassador  to  St. 
Petersburg.  In  this  dilemma,  Mr.  Bacon,  a  member  of  the 
House  of  Representatives  from  Massachusetts,  and  his  per- 
sonal friend,  suggested  the  name  of  Story.  Very  much  to 
the  surprise  of  the  latter,  Madison  appointed  him.  He  was 
confirmed  November  18,  1811,  and  took  his  seat  at  the  next 
term  of  the  Supreme  Court. 

What  was  generally  thought  of  this  appointment  at  the 
time,  and  especially  by  his  political  opponents,  is  thus  stated 
by  the  partial  pen  of  his  son :  ' '  The  ability  and  learning 
displayed  by  him  at  the  bar,  as  well  as  the  spotless  character 
with  which  he  had  passed  through  the  fiery  ordeal  of  politics, 


336  DARTMOUTH  COLLEGE  CAUSES. 

had  won  for  him  the  respect  and  confidence  of  a  large  class. 
But  there  were  not  wanting  those  who  looked  upon  his  ele- 
vation with  an  inauspicious  eye.  Party  animosities  were 
then  very  bitter,  and  among  his  political  opponents  his 
appointment  was  ridiculed  and  condemned.  Bigoted  in  their 
prejudices,  some  honestly  thought  that  none  but  a  fool  or  a 
knave  could  entertain  Repulilican  opinions  ;  and  others, 
from  his  youth  and  active  political  course,  augured  a  multi- 
tude of  evil  consequences." 

A  few  "  leaves  from  life  "  will  show  better  than  any  words 
of  ours  that  this  astute  politician  lost  none  of  his  great 
powers  by  his  transfer  from  the  caucus  to  the  consultation- 
room. 

An  intimacy,  personal  and  political,  had  subsisted  for 
years  between  Story  and  Governor  Plumer.  They  were 
both  Massachusetts  men  ;  were  born  in  the  vicinity  of  each 
other  ;  had  practised  at  the  Rocldngham  bar  ;  had  shared  the 
same  general  views  in  regard  to  the  embargo,  the  restrictive 
policy,  and  the  great  measures  which  preceded  and  arose 
during  the  war  of  1812. 

In  September,  1815,  Governor  Plumer  visited  Story,  as 
well  as  other  friends,  at  or  near  his  birthplace.  In  his 
journal,  under  the  date  of  September  16,  1815,  he  says : 
"At  Salem  I  spent  an  afternoon  with  Joseph  Story,  one 
of  the  judges  of  the  Supreme  Court  of  the  United  States. 
He  said  the  judges  of  that  court  had  informally  considered 
the  question  whether  the  governor  of  a  State  was  bound,  on 
the  requisition  of  the  president,  to  order  the  militia  into  the 
service  of  the  United  States.  He  could,  he  said,  discover 
no  diversity  of  sentiment  among  them  ;  he  believed  they 
were  unanimously  of  opinion  that  the  governors  were 
bound  to  obey  the  requisition,  and  regretted  that  neither 
the  president  nor  Congress  had  required  their  opinion  on 
the  subject.  He  complimented  me  on  my  speech  to  the 
Legislature  in  November,  1812,  upon  the  question  of  order- 
ing out  the  militia,  and  said  that  my  reasoning  appeared  to 


PLUMER STATE    COURT WEBSTER.  337 

him  conclusive.  He  mentioned  of  his  own  accord  tliat  he 
had  considered  the  hxw  of  New  Hampshire  of  1813,  estab- 
lishing the  new  judiciary,  and  w^as  of  opinion  that  it  was 
unconstitutional,"     (Life  of  Plumer,  430,  431.) 

This  simple  statement  from  the  pen  of  a  friend  portrays 
Story's  whole  judicial  life. 

The  Constitution  of  New  Hampshire  provides  that  the 
judges  "  shall  hold  their  offices  during  good  behavior." 
The  Federalists  came  into  power  in  1813,  upon  the  anti-war 
issue.  One  of  their  first  acts  was  to  blot  out  the  inferior 
courts,  abolish  the  Superior  Court,  —  the  constitutional 
court  of  last  resort,  —  turn  out  the  old  judges,  by  repealing 
the  act  creating  these  courts,  and  to  establish  a  new  system 
upon  their  ruins.  This  led  to  grave  complications.  Some 
of  the  old  judges  held  the  act  void,  and  went  on  holding 
their  terms,  as  did  the  new  ones  ;  some  sheriffs  recognized 
the  new,  and  some  adhered  to  the  old,  court.  The  result 
was  scandal  and  disturbances,  but  no  bloodshed. 

When  the  Anti-Federalists,  under  the  lead  of  Plumer, 
came  again  into  power,  a  few  months  after  this  interview 
with  Story,  they  acted  in  accordance  with  his  opinion,  in 
which  Plumer  and  other  leaders  coincided,  repealed  the  act  of 
June  24,  1813,  under  which  the  new  judges  held  their  offices, 
removed  them  by  address,  upon  the  ground  that  the  law 
was  unconstitutional,  and  restored  the  old  system.  No  man 
knew  the  facts  better  than  Webster  ;  but  when,  in  his  ar^^-u- 
ment  in  the  College  case,  he  went  out  of  his  way,  for  a  pur- 
pose, to  assail  with  unwonted  severity  the  State  government 
of  1816,  and  especially  its  Legislature  and  the  judiciary,  he 
preserved  a  guarded  silence  as  to  the  cause  of  it,  which  was 
the  revolutionary  proceedings  of  his  political  associates  in 
1813.  He  was  careful  not  to  suggest  that  the  weight  of  his 
great  influence  had  been  given  to  make  it  a  partisan  bench. 
Story  could  have  advised  Marshall  of  the  truth,  had  he  seen 
fit,  but  the  tone  and  coloring  of  the  opinion  of  the  chief 
shows  that  he  did  not  know  it. 


338  DARTMOUTH  COLLEGE  CAUSES. 

Nothing  could  be  more  characteristic  of  Story  than  what 
he  said  to  Governor  Phimer  about  the  power  of  the  presi- 
dent to  call  out  the  militia,  and  this  informal  decision  of  the 
Supreme  Court  of  the  United  States. 

The  Constitutions  of  Missouri,  Maine,  Massachusetts, 
New  Hampshire,  and  perhaps  other  States,  are  substantially 
alike  in  one  respect ;  they  grant  to  the  other  departments 
of  the  State  government  the  power  to  "  require  "  the  opin- 
ions of  the  judges  of  the  highest  court  upon  important  ques- 
tions of  law,  and  upon  solemn  occasions.  The  opinions  in 
37  Mo.  193,  51  Mo.  140,  55  Mo.  498,  and  that  of  Judges 
Richardson  and  Bell,  from  which  we  have  already  quoted, 
show  that  no  limits  to  this  loose  and  ill-defined  power  have 
ever  been  fixed  or  established.  In  the  Federal  Convention, 
August  20,  1787,  Pinkney  submitted,  among  others,  the 
following  proposition  :  "  Each  branch  of  the  legislature,  as 
well  as  the  supreme  executive,  shall  have  authority  to  require 
the  opinions  of  the  Supreme  Judicial  Court  upon  important 
questions  of  law,  and  upon  solemn  occasions."  This  project 
was  referred  to  the  committee  on  detail,  and  never  afterward 
heard  of.  The  plan  for  associating  the  judges  of  the 
Supreme  Court  with  the  executive  as  a  '  *  council  of  revis- 
ion," invested  ^vith  a  veto  power,  though  supported  by  some 
of  the  purest  and  ablest  men  in  that  body,  was  defeated  by 
a  large  majority.  No  such  provision,  and  none  anywise  akin 
to  it,  ever  existed  in  the  Constitution  of  the  United  States, 
and  no  man  knew  it  better  than  Story.  It  has  been  truly  said 
of  him  that  he  absorbed  jurisdiction  like  a  sponge.  The 
Constitution  became  in  his  hands  a  most  elastic  instrument. 
He  derived  this  power,  as  he  did  many  others,  by  a  con- 
struction so  "  liberal  "  that  it  was  well-nigh  limitless. 

The  Legislature  of  New  Hampshire,  in  1794,  authorized 
the  governor  to  call  out  the  militia  whenever  required  by 
the  president.  Governor  Plumer,  in  1812,  promptly  obeyed 
the  requisitions  made  upon  him,  and  was  assailed  with  great 
virulence  therefor.     Governors  Strong,  of  Massachusetts, 


STATE    CONSTITUTIONS.  339 

and  Griswold,  of  Connecticut,  refused  to  obey  similiir  requi- 
sitions, upon  the  ground  that  the  governor  of  each  State 
was  the  sole  judge  whether  the  exigency  contempleted  by 
the  Federal  Constitution  had  arisen  ;  and  it  was  also  held  in 
Massachusetts  and  Vermont,  that  although  the  president, 
when  actually  in  the  field,  could  command  the  militia,  yet 
he  could  not  put  them  under  any  but  their  own  State  offi- 
cers. The  opinions  of  Judges  Parsons,  Parker,  and  Sewall, 
given  to  Governor  Strong,  are  to  be  found  in  the  eighth 
volume  of  Massachusetts  Reports,  547-550.  This  great 
question  was  first  decided  by  the  Supreme  Court  in  1827,  in 
Martin  v.  Mott,  12  Wheat.  19.  Story  delivered  the  opinion 
of  the  court.  It  is  needless  to  add  that  he  adhered  to  the 
informal  decision  which  he  had  announced  to  Plumer  so 
many  years  before. 

In  the  absence  of  special  rules,  no  "  indecorum,"  to  use 
Webster's  phrase,  would  be  committed  if  counsel  furnished 
their  arguments,  written  or  printed,  to  every  member  of  the 
court.  We  commented  in  a  previous  chapter  upon  the  fact 
that  Webster  furnished  his  argument,  through  Story,  to 
sotne  of  the  judges,  and  not  to  others. 

The  long  struggle  between  Story  and  the  Supreme  Court 
of  New  Hampshire,  with  Joel  Parker  at  its  head,  over  the 
construction  of  a  clause  in  the  Bankrupt  Act  of  1841,  is  not 
yet  entirely  forgotten.  The  proviso  in  that  act  expressly- 
provided  that  nothing  in  the  act  should  be  ' '  construed  to 
annul,  destroy,  or  impair  *  *  *  any  liens,  mortgages, 
or  other  securities  on  property,  real  or  personal,  which  may 
be  valid  by  the  laws  of  the  States  respectively  ; ' '  and  the 
question  was,  whether  an  attachment,  made  in  accordance 
with  the  laws  in  New  Hampshire,  and  which  had,  in  sub- 
stance, been  in  force  since  they  were  enacted  in  Massachu- 
setts (of  which  New  Hampshire  was  then  a  part)  nearly  two 
hundred  years  before,  was  such  a  lien  or  security.  No  man 
knew  the  time  when  it  had  not  been  denominated  a  lien  by 
the   courts   in   New  Hampshire.      It   had   been  termed   a 


340  DARTMOUTH   COLLEGE    CAUSES". 

security  in  the  statutes  for  many  years  before  the  existence 
of  the  Bankrupt  Act.  Story,  in  one  of  his  works,  had 
affirmed  that  such  attachments  were  liens.  The  same  view 
had  been  taken  by  the  highest  courts  of  Massachusetts, 
Maine,  and  Connecticut,  b}'^  many  of  the  most  eminent  law- 
yers in  these  States,  and  by  some  of  the  ablest  Federal 
judges.  Story  was  the  author  of  this  Bankrupt  Act,  which 
had  been  a  pet  hobby  with  him  from  the  time  he  came  to 
the  bench.  Nearly  a  quarter  of  a  century  before  its  pas- 
sage, he  had  importuned  Webster  to  ask  him  to  frame  such 
a  law.  He  dinned  it  in  the  ears  of  his  associates,  and  emi- 
nent and  influential  members  of  Congress,  until  it  passed. 
Grave  questions  arose  as  to  the  extent  of  the  power  granted 
by  the  Constitution  to  Congress.  The  discussions  at  the 
bar,  the  speeches  of  Mr.  Benton  and  other  eminent  states- 
men, and  the  reports  of  the  Supreme  Court,  to  which  we 
have  already  referred,  show  how  greatly  professional  opinion 
was  divided.  Story  decided  many  of  these  questions  in  the 
same  way  that  he  did  others  in  his  interview  with  Governor 
Plumer.  His  opinion,  in  substance,  was  that  the  act  was 
uniform  ;  that  its  constitutionality  must  be  upheld ;  that  it 
was  a  good  law  ;  that  the  court  must  supply  its  defects,  fill 
the  gaps,  by  a  "liberal"  construction;  that  the  act  gave 
the  district  and  circuit  judges  the  power  to  "  overhaul  "  and 
"  control  "  all  State  courts  and  all  proceedings  therein. 

There  is  at  least  one  member  of  the  New  Hampshire  bar 
still  living  who  remembers  the  peculiar  smile  and  glistening 
eye  of  Judge  Parker  when  he  related  what  Story  had  said. 
It  is,  perhaps,  to  this  incident  to  which  Parker  alludes  in 
the  close  of  his  opinion  in  Kittredge  v.  Warren,  when  he 
sa3^s  :  "We  have  only  to  remark,  farther,  in  conclusion, 
that  we  have  been  strongly  impressed  from  the  first  with 
the  views  now  expressed  ;  and  the  extended  examination  we 
have  made  has  left  no  reasonable  doubt  upon  our  minds 
respecting  the  result." 

The  Supreme  Court  of  New  Hampshire  at  the  time  of 


CONTROVERSr  BETWEEN  STORY  AND  JUDGE  PARKER,       341 

this  collision,  to  use  the  words  of  Mr.  Bishop,  was  "  one  of 
the  most  able  judicial  tribunals  in  the  Union." 

Judge  Parker  was  as  ' '  indefatigable  ' '  as  Webster  said 
John  Wheelock  was.  He  was  a  great  lawyer,  a  great  judge, 
and  a  great  man.  Chief  Justice  Bell,  one  of  his  successors, 
well  said  of  him  :  "  He  was  a  most  formidable  antagonist, 
and  combined  the  strenoth  of  five  men  with  the  sensitiveness 
and  tenacity  of  ten  women."  He  was  a  Federalist  and  a 
Whig  of  the  iron  stamp  ;  but  such  was  the  respect  felt  for 
him  by  his  political  opponents,  that,  of  their  own  accord, 
they  first  made  him  judge  and  then  chief  justice  of  the 
highest  court  of  the  State,  and  sustained  him  in  that  position 
from  first  to  last. 

In  April,  1842,  Story  gave  an  elaborate  oj)inion  in  Ex 
parte  Foster,  2  Stor}^  131.  Before  the  filing  of  the  peti- 
tion, the  property  of  the  bankrupt  had  been  attached  on 
mesne  process  in  one  of  the  Massachusetts  courts.  He 
applied  to  the  district  judge  for  an  injunction  to  restrain 
further  proceedings  in  the  State  courts,  and  requiring  the 
property  to  be  handed  over  to  the  assignee.  The  District 
Court  certified  the  questions  to  the  Circuit  Court.  Story 
decided  that  the  attachment  was  not  protected  by  the 
saving  clause,  and  adhered  to  his  opinion  that  the  State 
courts  were  but  wax  in  the  hands  of  the  District  and  Circuit 
Courts,  and  that  these  Federal  judges  could  "  overhaul, 
control,  or  set  aside"  the  proceedings  and  judgments  in 
the  State  courts,  just  as,  in  Martin  v.  Mott,  he  afiirmed  the 
opinion  he  had  given  Governor  Plumer  eleven  years  before. 

In  Kittredge  v.  Warren  (14  N.  H.  509  —January,  1844), 
William  H.  Duncan,  the  son-in-law  of  Trustee  Olcott,  and 
the  brother-in-law  of  Rufus  Choate,  who  still  lives,  as  he 
always  has,  right  under  the  shadow  of  the  College,  was 
counsel  for  the  defendant.  He  relied  on  the  reasoning 
and  authority  of  Ex  parte  Foster.  This  drew  from  Judge 
Parker,  as  the  organ  of  the  court,  an  able  adverse  opinion, 
nearly  thirty  pages  in  length.     In  July,  1844,  Story,  in  the 


342  DARTMOUTH  COLLEGE  CAUSES. 

matter  of  Bellows  and  Peck  (3  Story,  428),  reaffirmed  his 
opinion  in  Ex  parte  Foster,  and  replied  to  that  of  Parker 
in  Kittredge  v.  Warren,  in  language  and  with  an  emphasis 
which  showed  how  deeply  his  self-love  had  been  wounded. 
At  the  July  term,  1844,  Parker,  again  speaking  for  the 
Supreme  Court,  responded  in  a  masterly  opinion  in  Kit- 
tredge V.Emerson  (15  N.  H.  227-280).  In  closing,  he  re- 
Ijlied  to  Story's  threat  with  the  distinct  notice  that  the  State 
court  would  protect  its  jurisdiction  and  officers  at  all 
hazards,  and  intimated  that  it  might  not  be  entirely  safe 
for  those  who  might  attempt  to  execute  the  threat.  The 
State  court  ordered  judgment  for  the  plaintiif.  Nobody 
attempted  to  interfere  with  the  execution  of  its  mandate. 
On  June  5,  1844,  the  governor  of  New  Hampshire,  in  his 
message,  called  the  attention  of  the  Legislature,  then  in 
session,  to  the  controversy,  and  the  perils  that  must  flow 
from  it. 

On  December  26,  1844,  the  House,  sweeping  away  party 
lines,  almost  unanimously  passed  a  joint  resolution  sustain- 
ing "  the  firm  and  decided  stand  "  of  the  court  "  in  opposi- 
tion to  the  unwarrantable  and  dangerous  assumptions  of  the 
Circuit  Court  of  the  United  States."  On  December  31, 
1844,  Story  responded  to  Parker  and  the  State  government 
with  his  opinion  in  Ex  parte  Christy  (3  How.  292),  dragging 
the  majority  of  the  Supreme  Court  of  the  United  States  into 
this  controversy  between  himself  and  Judge  Parker,  in  an 
opinion  upon  a  point  which  that  court  could  not  properly 
consider  in  that  case. 

This  was  a  "motion"  made  in  the  Federal  Supreme 
Court,  in  behalf  of  the  City  Bank  of  New  Orleans,  that  a  writ 
of  prohibition  issue  to  the  United  States  District  Court  of 
Louisiana,  restraining  it  from  proceeding  further  in  Christy's 
case.  It  was  so  evident  that  no  power  had  been  conferred 
upon  the  Supreme  Court  to  issue  such  a  writ  in  such  a  case, 
that  even  Story  decided,  in  five  lines,  without  either  reason- 
ing or  the  citation  of  authorities,  that  the  court  had  no 


STOKY    AND    PARKER ACTION    OF    LEGISLATURE.        343 

jurisdiction  ;  but  he  nevertheless  went  on  with  an  opinion  of 
fourteen  pages,  which  is  a  marvel  for  its  ability  and  obscurity, 
as  well  as  its  contradictory  character,  in  attempting  to  show 
that  if  the  court  had  had  jurisdiction,  Judge  Parker,  in  his 
opinion,  was  very  much  in  error.  Story  has  taken  pains  in 
his  private  correspondence  to  show  us,  beyond  a  doubt,  what 
his  purpose  was  in  writing  this  opinion. 

In  his  letter  of  January  1,  1845,  to  his  son,  he  says: 
' '  Yesterday  I  delivered  the  opinion  of  the  court  in  a 
great  bankrupt  case  from  New  Orleans,  embracing  the 
question  of  the  nature  and  extent  of  the  jurisdiction  of  the 
District  Court  in  matters  of  bankruptcy.  It  was  an  elabo- 
rate review  of  the  whole  statute,  and  we  sustained  the  juris- 
diction of  the  District  Court  over  all  matters  whatsoever, 
and  recognized  (as,  indeed,  was  one  of  the  points)  the 
right  of  the  court  to  grant  an  injunction  to  proceedings  and 
suits  in  the  State  courts.  The  opinion  covers  the  whole 
ground  in  Ex  parte  Foster,  and  also  in  the  New  Hampshire 
cases,  which  have  heen  so  stoiitJi/  contested  in  the  State 
courts.  *  *  *  I  took  great  pains  about  it,  and  the  court 
fully  confirmed  all  my  views.  Judge  Catron  alone  dis- 
sented." 

Judge  Catron,  with  whom  Judge  Daniel  concurred,  admin- 
istered to  Story  a  dignified  l)ut  stinging  rebuke  for  the 
course  taken  by  him  in  this  opinion.  He  said:  "  By  the 
fourteenth  section  of  the  Judiciary  Act,  this  court  has  power 
to  issue  writs  proper  and  necessary  for  the  exercise  of  its 
jurisdiction  ;  having  no  jurisdiction  in  any  given  case,  it  can 
issue  no  writ.  That  it  has  none  to  revise  the  jDroceedings  of 
a  bankrupt  court,  is  our  unanimous  opinion.  So  far  we 
adjudge,  and  in  this  I  concur.  For  further  views  why  the 
prohilfition  cannot  issue,  I  refer  to  the  conclusion  of  the 
principal  opinion.  But  a  majority  of  my  brethren  see  proper 
to  go  further,  and  express  their  views  at  large  on  the  juris- 
diction of  the  bankrupt  court.  In  this  course  I  cannot  con- 
cur ;  perhaps  it  is  the  result  of  timidity,   growing  out  of 


344  DARTMOUTH  COLLEGE  CAUSES. 

long-established  judicial  habits  in  courts  of  error  elsewhere, 
never  to  hazard  an  opinion  when  no  case  was  before  the  court, 
and  when  that  opinion  might  be  justly  arraigned  as  extra- 
judicial, and  a  mere  dictitm,  by  courts  and  lawyers  ;  be  partly 
disregarded  while  I  was  living,  and  almost  certainly  be 
denounced  as  undue  assumption  when  I  was  no  more,  —  a 
measure  of  disregard  awarded  with  an  unsparing  hand,  here 
and  elsewhere,  to  i\\Q,,clicta  of  State  judges  under  similar 
circumstances.  And  it  is  due  to  the  occasion  and  to  myself 
to  say,  that  I  have  no  doubt  the  dicta  of  this  court  will  only  be 
treated  with  becoming  respect  before  the  court  itself  so  long 
as  some  of  the  judges  who  concurred  in  them  are  present  on 
the  bench,  and  afterwards  be  openly  rejected  as  of  no 
authority,  —  as  they  are  not." 

In  Peck  V.  Jenness  (16  N.  H.  516-537— July,  1845), 
Judge  Parker,  for  obvious  reasons,  disregarded  this  opinion 
in  Ex  parte  Christy.  In  this  case  (7  How.  612-626),  at  the 
December  term,  1848,  four  years  after  Story  read  his 
opinion  in  Ex  parte  Christy,  the  Supreme  Court  of  the 
United  States  unanimously  decided  that  Parker  was  right, 
and  Story  wrong. 

The  written  opinion  to  Webster,  of  December  25,  1833 
(2  Life  of  Story,  155-158),  upon  a  variety  of  questions, 
raised  by  certain  acts  of  the  president  and  Mr.  Taney,  in  the 
great  bank  war,  is  another  illustration  of  the  way  in  which, 
during  his  whole  judicial  life,  he  sowed  on  every  hand  his 
written  and  oral  opinions  upon  questions  he  was  likely  to  be 
called  to  decide  as  a  judge.  The  harvest  which  these 
dragon's  teeth  produced  was  sometimes  more  perilous  than 
armed  men. 


CHAPTER    XIY.  —  CoNTmuED. 

Story,  "in  the  end,"  supplemented  the  opinion  that  the 
charter  was  protected  by  the  obligation  clause.  This  was 
the  natural  result  of  his  new  views,  adopted  after  his  ele- 
vation to  the  bench,  under  the  influence  of  the  seductive 
power  of  Marshall  and  the  promptings  of  his  vast  ambition, 
that  the  controlling  purpose  of  this  clause,  as  of  many 
others,  was  not  to  protect  private  rights,  but  to  subserve 
great  political  ends  ;  or,  as  it  is  put  by  Webster,  in  his 
celebrated  argument  in  Ogden  v.  Saunders,  which  Story 
indorsed,  if  he  did  not  originate  :  "  The  inquiry  then  recurs, 
whether  the  law  in  question  be  such  a  law  as  the  Legisla- 
ture of  New  York  had  authority  to  pass.  The  question  is 
general.  We  differ  from  our  learned  adversaries  on  general 
principles.  We  differ  as  lo  the  main  scope  and  end  of  this 
constitutional  provision.  They  thinh  it  entirely  remedial; 
we  regard  it  as  preventive.  They  think  it  adopted  to  pro- 
cure redress  for  violated  private  rights ;  to  us  it  seems 
intended  to  guard  against  great  public  mischiefs.  They 
argue  it  as  if  it  were  designed  as  an  indemnity  or  protection 
for  injured  private  rights  in  individual  cases  of  meiim  and 
tuum;  we  look  upon  it  as  a  great  political  provision,  favor- 
able to  the  commerce  and  credit  of  the  whole  country. 
Certainly  we  do  not  deny  its  application  to  cases  of  violated 
private  right.  Such  cases  are  clearly  and  unquestionably 
within  its  operation.  Still,  we  think  its  main  scope  to  be 
general  and  political."  And  in  his  recapitulation,  Webster 
says:  "Sixthly,  that  upon  any  other  construction,  one 
great  political  object  of  the  Constitution  will  fail  of  its 
accomplishment. ' ' 

Marshall,  though  firm  and  decided,  was  by  nature  a  mode- 

(3-15) 


346  DARTMOUTH  COLLEGE  CAUSES. 

rando.  Circumstances,  personal  and  political,  intensified 
his  views  as  he  advanced  in  life.  Jay  and  JeiFerson  were 
the  antipodes  in  American  politics.  In  1785,  Jay  thus 
expressed  his  convictions  :  * '  It  is  my  first  wish  to  see  the 
United  States  assume  and  merit  the  character  of  one  great 
nation,  whose  territory  is  divided  into  different  States 
merely  for  more  convenient  government,  and  the  more 
easy  and  prompt  administration  of  justice  ;  just  as  our 
several  States  are  divided  into  counties  and  townships  for 
the  like  purposes."  Just  before  the  Federal  Convention 
which  framed  the  Constitution  met,  he  wrote  to  General 
Washington:  "What  powers  should  be  granted  to  the 
government  so  constituted  is  a  question  which  deserves 
much  thought.  /  thiJik  the  more  the  better;  the  States 
retaining  only  so  much  as  may  be  necessary  for  domestic 
purposes,  and  all  their  principal  officers,  civil  and  military, 
being  commissioned  and  removable  by  the  national  govern- 
ment." In  his  opinion  in  Chisholm  v.  Georgia,  and  sub- 
sequently. Jay  adhered  to  the  same  general  views. 

A  few  extracts  from  Story's  private  correspondence  will 
show  how  fully,  after  his  lurch  from  the  school  of  Jefferson, 
he  shared  the  views  of  Jay.  In  his  letter  of  February  22, 
1815,  to  Williams,  Story  says  :  "  Let  us  extend  the  national 
authority  over  the  whole  extent  of  power  given  by  the  Con- 
stitution. Let  us  have  great  military  and  naval  schools  ; 
an  adequate  regular  army  ;  the  broad  foundations  laid  of  a 
permanent  navy  ;  a  national  bank  ;  a  national  system  of 
bankruptcy  ;  a  great  navigation  act ;  a  general  survey  of  our 
ports,  and  appointments  of  port- wardens  and  pilots  ;  judicial 
courts,  which  shall  embrace  the  whole  constitutional  powers  ; 
national  notaries  ;  public  and  national  justices  of  the  peace, 
for  the  commercial  and  national  concerns  of  the  United 
States.  By  such  enlarged  and  liberal  institutions,  the 
government  of  the  United  States  will  be  endeared  to  the 
people,  and  the  factions  of  the  great  States  will  be  rendered 
harmless." 


story's  national  ideas.  347 

In  his  letter  of  December  13,  1815,  to  the  reporter, 
Whcaton,  in  relation  to  the  bankrupt  law,  etc.,  he  says  :  "  I 
hope  you  will  follow  up  the  blow  by  vindicating  the  necessity 
of  establishing  other  great  national  institutions  ;  the  exten- 
sion of  the  jurisdiction  of  the  courts  of  the  United  States  over 
the  whole  extent  contemplated  in  the  Constitution  ;  the  ap- 
pointment of  national  notaries-iDublic  and  national  justices  of 
the  peace  ;  national  port-wardens  and  pilots  for  all  the  ports 
of  the  United  States  ;  a  national  bank  and  national  bankrupt 
laws.  I  have  meditated  much  on  all  these  subjects,  and  have 
the  details,  in  a  considerable  degree,  arranged  in  my  mind. 
And,  once  for  all,  I  most  sincerely  hope  that  a  national 
newspaper  may  be  established  at  Washington,  which,  for  its 
talents  and  taste,  shall  entitle  itself  to  the  respect  of  the 
nation,  and  preserve  the  dignity  of  the  government."  (2 
Life  of  Story,  254-271.) 

We  have  already  commented  upon  some  of  the  peculiarly 
latitudinarian  opinions  given  by  Story  to  Governor  Plumer. 
Young  Story,  in  his  life  of  his  father,  from  which  we  have 
quoted,  after  commenting  upon  the  case  of  Martin  v.  Hun- 
ter's Lessee,  says :  — 

"  This  was  the  first  great  constitutional  judgment  delivered  by 
my  father.  To  this  department  of  the  law  he  had  given  little 
study  during  his  practice  at  the  bar,  and,  although  he  had  always 
avowed  himself  to  be  a  disciple  of  Washington,  j^et,  as  the  views 
of  the  party  to  which  he  belonged  were  widely  different  from  those 
entertained  b}'-  the  illustrious  Chief  Justice  Marshall,  no  small  curi- 
osity was  felt  by  his  friends  as  to  the  determination  his  mind 
should  take  on  great  constitutional  questions.  The  Eepublicans 
were  strict  constructionists  of  the  Constitution,  narrowing  down 
the  powers  of  the  Federal  government  to  the  express  and  exact 
terms  of  that  instrument,  while  the  Federalists  claimed  a  broader 
and  more  liberal  exposition  in  favor  of  the  United  States.  *  *  * 
Upon  taking  his  seat  on  the  bench,  my  father  devoted  himself 
to  this  branch  of  the  law,  and  the  result  was  a  cordial  adherence 
to  the  views  of  Marshall,  whom  he  considered,  then  and  ever  after- 
wards, as  the  expounder  of  the  true  principles  of  the  Constitution. 


348  DARTMOUTH  COLLEGE  CAUSES. 

Nor  did  this  indicate  so  much  a  change  as  a  formation  of  opinion, 
and  it  is  no  slight  indication  of  his  independence  and  emancipation 
from  the  influence  of  party  that  he  resigned,  upon  careful  study 
and  examination  into  the  history  and  principles  of  the  Constitution, 
his  early  prejudices  in  favor  of  Mr.  Jefferson's  abstractions  for 
the  clear  and  practical  doctrines  of  Marshall.  *  *  *  jjis  was 
the  consistency  of  truth  —  to  the  living  thought  of  the  present, 
not  to  the  dead  opinion  of  the  past. ' ' 

The  partial  pen  of  the  son  has  done  injustice  to  his 
father.  Story  and  Marshall  sometimes  rode  abreast ;  some- 
times Story,  like  Johnson,  concurred  in  the  opinions  and 
judgments  of  Marshall  from  which  he  dissented,  as  in  the 
case  of  United  States  v.  Bevans,  3  Wheat.  336  ;  and  some- 
times, as  in  the  College  causes  and  the  case  of  the  Cherokee 
Nation,  he  far  outran  the  chief  justice. 

It  is  not  true  that  this  astute  politician  and  learned  law- 
yer was  without  opinions  upon  great  constitutional  questions, 
or  that  he  had  failed  to  study  them  before  his  accession  to 
the  bench.  In  the  broils  and  discussions,  legal  and  political, 
which  grew  out  of  the  embargo,  restrictive  policy,  etc.,  he 
had  scaled  the  heights  and  measured  the  depths  of  the  great 
powers  conferred  upon  the  general  government  over  com- 
merce. The  same  is  true  of  the  treaty-making  power,  and  the 
provisions  in  relation  to  treason,  as  well  as  the  great  powers 
which  give  control  over  the  purse  and  sword  of  the  nation. 
On  February  17,  1810,  he  argued  the  great  Georgia  case 
before  the  Supreme  Court  of  the  United  States  with  con- 
summate ability,  and  he  did  not  do  this  till  after  he  had 
carefully  studied  the  obligation  clause. 

The  nominal  hearing  in  the  causes,  which  had  been  sent 
up  from  his  circuit,  and  remanded,  was  had  before  Story  on 
May  27,  1819. 

In  his  letter  to  Mason,  of  February  23,  1819,  Webster 
says  :  "  As  to  their  facts,  which  they  say  are  new,  they  will, 
I  apprehend,  be  told  that,  if  admitted,  they  would  not 
alter  the  result ;  and,  in  the  next  place,  that  the  court  con- 


story's    constitutional    studies NEW    FACTS.       349 

siders  the  recital  of  the  charter  as  conclusive  upon  the  facts 
contained  in  it."      (Mason's  Mem.  221.) 

In  his  letter  to  Mason,  of  April  13,  1819,  already  quoted, 
he  said  :  "  I  flatter  myself  the  judge  [Story]  will  tell  the  de- 
fendants that  the  new  facts  which  they  talk  of  were  presented 
to  the  minds  of  the  judges  at  Washington,  and  that,  if  all 
proved,  they  would  not  have  the  least  effect  on  the  opinion 
of  any  judge.'-  (Mason's  Mem.  223.)  This  was  wrecks 
before  the  facts  were  put  in  evidence  before  Story.  If  so 
joresented  to  the  minds  of  the  judges,  it  must  have  been 
months  before  the  formal  hearing  before  him. 

Webster  in  his  letter  to  Mason,  dated  at  Boston,  May  27, 
1819,  says:  "Mr.  Austin  read  this  morning  a  mass  of 
papers  about  the  new  facts.  The  judge  thought  there  was 
nothing  in  them,  but  has  taken  the  papers  for  a  day  or  two 
to  examine  them  before  he  gives  a  formal  decision.  He 
says  he  sees  nothing  which  contradicts  any  part  of  the  re- 
cital of  the  charter.  We  had  not  much  talk  about  it.  Mr. 
A.  read  &  stated  all  he  chose  to  do,  &  the  judge  intimated 
that  the  new  facts  had  no  bearing  on  any  part  of  the  court's 
opinion."      (Mason   Papers;    Harvey's  Webster   Papers.) 

Webster,  in  his  letter  to  Brown,  of  May  30,  1819,  says  : 
*' James  T.  Austin,  Esq.,  in  behalf  of  the  University,  pre- 
sented the  new  facts  to  Judge  Story  on  Thursday.  They 
were  what  we  expected  and  no  more.  The  judge  said  he 
saw  nothing  to  vary  at  all  the  case  as  it  had  been  considered 
and  decided.  None  of  these  '  facts  '  if  true  changed  the 
ground,  nor  did  he  see  any  the  least  contradiction  between 
any  of  these  facts  and  the  recitals  of  the  charter.  He  was 
willing  however  to  take  the  papers  and  read  them  atten- 
tively, to  the  end  that  he  might  fully  ascertain  whether  they 
presented  any  new  point  w^hich  could  be  material.  He 
accordingly  took  home  the  papers,  and  to-morrow  or  the 
next  day  will  probably  announce  his  final  decision.  There 
is  no  doubt  about  it.  These  new  facts  whether  true  or  false 
have  nothing  to  do  with  the  question,  and  you  may  expect 


350  DARTMOUTH  COLLEGE  CAUSES. 

judgment  and  execution  in  the  causes  in  the  Circuit  Court, 
June  10,  as  by  arrangement  made  at  Portsmouth."  (1 
Webster's  Priv.  Cor.  306.) 

The  new  facts  were  precisely  what  Webster  "  expected." 
What  were  they?  Let  Judge  Smith,  his  associate,  answer. 
In  his  letter  to  Mr.  Brown,  of  December  18,  1818,  Smith 
says:  "Immediately  after  I  sent  to  the  post-office  my 
letter  to  you  of  yesterday,  Mr.  Sullivan  and -Mr.  Ich.  Bart- 
lett,  with  Mr.  Upham,  of  the  University,  culled  on  me  with 
a  bundle  of  pajDers,  to  be  certified  as  authentic,  and  to  be 
used  in  the  argument  of  the  College  causes,  if  adjudged 
pertinent  or  proper  evidence."  These  papers  were  termed 
by  him  "  the  Wheelock  papers."  We  have,  together  with 
this  letter,  the  original  schedule,  in  the  handwriting  of  Judge 
Smith.  The  papers  are  ranged  in  the  schedule  under 
numerous  heads,  commencing  with  the  printed  "  narrative  " 
of  the  elder  Wheelock,  and  ending  with  an  abstract  from 
his  Avill.  The  schedule  covers  numerous  letters,  records, 
and  papers,  including  those  in  the  matter  of  Landafl".  The 
written  headings  alone  cover  nine  long  pages.  We  have  re- 
ferred to  this  evidence,  and  Brown's  abstract  of  it,  in  pre- 
vious chapters. 

Aside  from  Story's  passion,  to  which  we  have  already 
referred,  of  gathering  every  item  of  legal,  political,  and 
judicial  gossip,  he  had  the  amplest  facilities  for  becoming 
perfectly  familiar  y»ath  the  history  of  these  proceedings 
which  resulted  in  the  College  suits. 

At  the  first  hearing  upon  the  causes  in  the  Circuit  Court, 
in  May,  1819,  Judge  Story  read  an  elaborate  opinion,  sup- 
posed to  be  substantially  the  same  as  that  filed  with  the 
reporter  in  Trustees  v.  Woodward.  No  formal  opinion  is 
understood  to  have  been  rendered  at  the  second  hearing. 

Story's  views  in  relation  to  these  causes  are  undoubtedly 
to  be  found  in  his  opinion  in  Trustees  v.  Woodward,  and 
Allen  V.  McKeen,  1  Sumn.  27G-318.  Story's  decision  in 
tlie  College  causes,  in  efiect,  annihilated  Dartmouth  Uni- 


EFFECT  OF    STORY 's    DECISION BOWDOIN    COLLEGE.       351 

versity,  handed  over  the  munificent  bequest  which  John 
Wheelock  hud  made  to  it  to  a  New  Jersey  college  (as  is 
said,  to  Princeton),  deposed  William  Allen,  the  president, 
and  drove  him  from  Hanover. 

In  December,  1819,  the  same  Dr.  Allen  became  the 
president  of  Bowdoin  College,  at  Brunswick,  Maine,  which 
office  he  held,  in  legal  contemplation,  till  1839.  This  col- 
lege was  chartered  by  the  Legislature  of  Massachusetts, 
June  24,  1794.  This  act  provided  for  establishing  the 
college  ;  put  it  under  the  government  of  two  bodies  cor- 
porate ;  made  the  president,  treasurer,  and  eleven  others 
one  of  these  bodies,  with  perpetual  succession ;  provided 
for  the  creation  of  a  board  of  overseers  ;  gave  the  corpora- 
tion power  to  declare  the  tenure  and  duties  of  certain 
officers,  with  power  to  remove  trustees,  etc.  The  six- 
teenth section  gave  the  Legislature  authority  to  "grant 
any  further  powers  to,  or  alter,  limit,  annul,  or  restrain 
any  of  the  powers  by  this  act  vested  in,  the  corporation,  as 
shall  be  judged  necessary  to  promote  the  best  interests  of 
said  college."  The  next  section  granted  to  the  college 
five  townships,  six  miles  square,  to  be  laid  out  of  any 
unappropriated  lands  of  the  Commonwealth  in  the  then 
district  of  Maine,  with  the  usual  provisions  that  the  cor- 
poration might  acquire  jDroperty  and  take  donations,  etc. 

The  lands  granted  vested  in  the  corporation,  and  dona- 
tions were  given  it  from  time  to  time  by  private  individuals. 
The  college  boards  were  duly  organized  under  the  charter, 
and  the  college  went  into  operation  in  the  year  1801.  In 
July,  1801,  the  corporation  fixed  the  salary  of  the  president 
at  $1,000  per  annum,  payable  quarterly.  Li  1805,  this  was 
raised  to  $1,200.  On  November  4, 1801,  the  board  declared 
the  tenure  of  the  office  of  president  to  be  "  during  good 
behavior."  The  by-laws  required  every  candidate  to  pay 
$5  to  the  treasurer,  for  the  president,  and  a  like  fee  for 
every  medical  degree. 

Li  May,  1820,  Dr.  Allen  assumed  the  duties  of  this  office, 


352  DARTMOUTH  COLLEGE  CAUSES. 

with  this  known  tenure  and  the  salary  and  perquisites 
annexed.  In  the  same  month  the  boards  passed  a  vote 
recitins:  the  clause  in  the  Constitution  of  Maine  as  to  endow- 
ments,  and  declared  that  their  consent  be  given  that  the 
right  to  enlarge,  limit,  or  restrain  the  powers  given  by  tlie 
charter  might  be  vested  in  the  Legislature  of  Maine,  and 
steps  were  taken  to  secure  endowments.  A  variety  of  acts 
were  subsequently  passed  by  the  Legislature,  which  it  is 
unnecessary  to  consider.  On  March  31 ,  1831 ,  an  act  passed, 
aimed  directly  at  Dr.  Allen,  providing  "  that  no  person  hold- 
ing the  office  or  place  of  president  in  any  college  in  this 
State  shall  hold  said  office  or  place  beyond  the  day  of  the 
next  commencement  of  the  collei^e  in  which  he  holds  the 
same,  unless  he  shall  be  reelected.  And  no  person  shall  be 
elected  or  reelected  to  the  office  or  place  of  president  unless 
he  shall  receive  in  each  board  two-thirds  of  all  the  votes 
given  in  the  question  of  his  election.  And  every  person 
elected  to  said  office  or  place  after  the  passing  of  this  act 
shall  be  liable  to  be  removed  at  the  pleasure  of  the  board 
of  trustees,  or  hoard  of  trustees  and  overseers,  which  shall 
elect  him."  "That  the  fees  paid  for  any  diploma,  or  medi- 
cal or  academical  degree,  etc.,  shall  be  paid  into  the  treasury 
for  the  use  of  the  college,  and  no  part  shall  be  received  by 
any  officer  as  a  perquisite  of  office.'" 

The  boards,  in  September,  1831,  duly  voted  "  that  they 
acquiesce  in  said  act,  and  will  now,  etc.,  proceed  to  carry 
the  provisions  thereof  into  effect."  The  Board  of  Trustees 
gave  due  notice  to  Dr.  Allen,  and  then  proceeded  to  elect  a 
president ;  but  no  candidate  having  a  majority  of  votes,  no 
choice  was  made,  and  the  college  remained  without  any 
acknowledged  president  until  the  question  was  determined. 

For  some  inscrutable  reason,  Dr.  Allen  brought  assumpsit 
for  money  had  and  received,  not  against  the  corporation, 
but  the  treasurer  of  the  college,  for  the  salary  and  perqui- 
sites of  office  due  him,  as  he  claimed,  notwithstanding  his 
ejection  from  office  under  the  vote  of  the  boards,  in  Septem- 


BOWDOIN    COLLEGE    CASE STORY'S    OPINION.  353 

ber,  1831.  Story  decided  that  he  could  recover  the  perqui- 
sites ill  this  suit,  and  affirmed  the  principle  which  lay  at  the 
foundation  of  his  opinion  to  Plumer  in  relation  to  the 
Judiciary  Act  of  1813,  and  avowed  by  him  in  his  opinion  in 
the  College  causes, — that  an  office  so  held  was  a  contract  pro- 
tected by  the  obligation  clause  ;  but  that  for  the  breach  of 
that  contract  he  must  proceed,  not  against  the  treasurer, 
but  his  master,  the  corporation. 

Dr.  Allen  was  not  only  the  son-in-law  of  John  Wheelock, 
but  his  confidant  and  one  of  his  principal  advisers  in  the 
troubles  which  preceded,  as  well  as  those  which  followed, 
the  removal  of  Wheelock  by  the  trustees.  He  was  familiar 
with  the  "  inside  history  "  of  the  causes,  and  Story's  position 
in  reference  to  them.  Allen  and  Dr.  Perkins,  to  whose 
week's  conference  with  Pinkney  we  have  referred,  were  the 
principal  managers  of  the  College  causes  on  the  University 
side  after  Wheelock' s  death.  Allen  went  to  his  grave  with 
the  conviction,  still  shared  by  Wheelock' s  descendants,  that 
a  great  wrong  had  been  perpetrated  under  the  color  of  a 
judicial  decision.  The  occasion  was  distasteful  to  Allen, 
but  he  undoubtedly  took  pleasure  in  compelling  Story  to 
decide  in  the  case  between  him  and  Bowdoin  the  same  ques- 
tion which  he  had  nominally  decided  in  May,  1819,  in  the 
College  causes.  If  he  won,  he  got  his  perquisites  and  the 
arrears  of  his  salary,  established  his  right  to  the  office, 
defeated  the  purpose  of  the  Legislature,  and  emasculated 
the  power  of  his  personal  and  political  enemies  in  the 
boards  ;  if  he  lost,  it  was  the  vindication  of  himself  and 
Wlieelock  and  the  University,  and  the  condemnation  of 
Story.  The  reluctance  with  which  Story  met  this  issue  is 
but  faintly  shown  by  his  ' '  outline  ' '  and  ' '  opinion  ' '  in  this 
case.  In  closing  his  opinion,  he  says  :  "I  have  now  finished 
all  that  is  necessary  to  be  said  for  the  decision  of  this  cause. 
But  I  cannot  dismiss  it  without  expressing  my  regret  that  it 
has  ever  come  before  the  court,  and  that  I  have  been 
deprived  of  the  assistance  of  my  learned  brother,  the  dis- 


354  DARTMOUTH  COLLEGE  CAUSES. 

trict  judge,  in  deciding  it.  If  this  court  were  permitted  to 
have  any  choice  as  to  the  causes  which  should  come  before 
it,  this  is  one  of  the  last  which  it  would  desire  to  entertain. 
But  no  choice  is  left.  This  court  is  bound  to  a  single  duty, 
and  that  is,  to  decide  the  causes  brought  before  it  accordmg 
to  law,  leaving  the  consequences  to  fall  as  they  may. 

"  It  is  impossible,  in  any  aspect  of  the  case,  not  to  feel  that 
the  decision  is  full  of  embarrassment.  On  the  one  hand, 
the  importance  of  the  vested  rights  and  franchises  of  this 
literary  institution  has  not  been  exaggerated  ;  and,  on  the 
other  hand,  the  extreme  difficulty  of  successfully  conducting 
any  literary  institution  without  the  patronage  and  cordial 
support  of  the  government,  and  under  a  head  who  may 
(however  undeservedly)  not  enjoy  its  highest  confidence,  is 
not  less  obvious." 

Allen  V.  McKeen  was  decided  in  May,  1833,  fourteen 
years  after  the  decision  in  the  last  of  the  College  causes. 

This  opinion  should  be  read  as  an  explanation  of  the 
most  important  portions  of  the  elaborate  essay  filed  by 
Story  with  the  reporter,  in  Trustees  v.  Woodward.  He  says  : 
"  Independent,  however,  of  this  general  ground,  there  is 
another  of  great  weight  and  importance,  and  that  is,  that 
President  Allen  was  in  office  under  a  lawful  contract  made 
with  the  boards,  by  which  contract  he  was  to  hold  that  office 
during  good  behavior,  with  a  fixed  salary  and  certain  fees 
annexed  thereto.  This  was  a  contract  for  a  valuable  con- 
sideration, the  obligation  of  which  could  not,  consistently 
with  the  Constitution  of  the  United  States,  be  impaired  by 
the  State  Legislature."  The  general  doctrine  of  Story,  to 
which,  so  far  as  appears,  he  consistently  adhered  from  the 
time  of  his  conference  with  Governor  Plunier  till  his  death, 
that  filling  an  office  was  a  contract  protected  by  the  Federal 
Constitution,  was  overthrown  by  the  Supreme  Court  in 
1850  (Butler  v.  Pennsylvania,  10  How.  402),  as  it  has  been 
by  every  reputable  State  court  that  has  passed  upon  it. 

We  are  not  aware  of  any  body  that  now  indorses  the 


story's    views STATES    MAIN    QUESTION.  355 

theory  of  Story  and  Livingston  in  the  College  case,  in  which 
Marshall  did  not  concur,  that  the  marriage  contract  is  within 
the  scope  of  the  obligation  clause.  He  further  says  :  "  But 
if  the  acquiescence  of  the  boards  could  be  construed  into  an 
approval  of  the  act  (as  I  think  it  ought  not  to  be),  still  that 
approval  cannot  give  effect  to  an  unconstitutional  act.  The 
Legislature  and  the  boards  are  not  the  only  parties  in 
interest  upon  such  constitutional  questions.  The  people 
have  a  deep  and  vested  interest  in  maintaining  all  the  con- 
stitutional limitations  upon  the  exercise  of  legislative  powers, 
and  no  private  arrangements  between  such  parties  can  super- 
sede them." 

Taken  as  it  reads,  this  would  seem  to  be  in  conflict  with 
the  opinions  in  the  College  case. 

He  thus  states  the  great  question  of  the  case  :  "Is  it  [the 
charter]  the  erection  of  a  private  corporation  for  objects  of 
a  public  nature,  like  other  institutions  for  the  general 
administration  of  charity?  Or  is  it,  in  the  strict  sen.<te  of 
laiv,  a  public  corporation,  solely  for  public  purposes, 
and  controllable  at  will  by  the  legislative  power  which 
erected  it,  or  which  has  succeeded  to  the  like  authority?  " 
He  concedes  that  the  College  "  is,  in  some  sense,  a  public 
institution  or  corporation,"  and  that  this  is  the  popular 
sense  in  which  the  language  is  commonly  used.  He  then 
proceeds  :  "  But  in  the  sense  of  the  law,  a  far  more  limited, 
as  well  as  more  exact,  meaning  is  intended  by  a  public  insti- 
tution or  corporation." 

This,  in  effect,  decides  not  only  that  all  corporations,  at 
common  law,  were  divided  into  two  classes,  public  and  pri- 
vate, but  that  the  term  "  public  corporation  "  is  a  technical 
phrase  of  the  common  law,  to  be  construed  in  the  narrow, 
strict  sense  usually  jDut  by  courts  upon  the  technical  words 
of  a  penal  code,  while  precisely  the  opposite  construction 
is  put  upon  the  term  ' '  private  corporation. ' '  His  subsequent 
indorsement  of  what  has  often  been  supposed  a  loose  state- 
ment in  his  opinion  in  the  College  case,  shows  that  he  meant 


356  DARTMOMUH   COLLEGE    CAUSES. 

to  assert  that  this  rule  was  among  '*  the  most  solid  founda- 
tions of  the  common  law." 

If  we  may  not  apply  to  this  the  remark  of  Walpole,  we 
may  at  least  that  of  Mr.  Justice  Campbell  in  Jackson  v. 
Steamboat  Magnolia,  in  respect  to  another  opinion  of  Story  : 
"  The  opinion  *  *  *  is  celebrated  for  its  research,  and 
remarkable,  in  my  opinion,  for  its  boldness  in  asserting 
novel  conclusions,  and  the  facility  with  which  authentic 
historical  evidence  that  contradicted  them  is  disposed  of." 
(20  How.  336.) 

As  if  fearing  that  some  attempt  might  be  made  to  relax 
this  rule,  after  quoting  from  his  opinion  in  the  College  ca^e, 
that  towns,  cities,  parishes,  and  counties,  existing  for  pub- 
lic political  purposes  only,  may  in  many  respects  be 
"esteemed"  public  corporations,  he  quotes  the  following 
passages,  which,  he  says,  "had  the  approbation  of  the 
court:  "  "  But,  strictly  speaking,  public  corporations  are 
such  only  as  are  founded  by  the  government  for  public 
purposes,  iDhere  the  whole  interests  belong  also  to  the  gov- 
ernment. *  *  *  That  is,  where  its  whole  interests  and 
franchises  are  the  exclusive  property  and  domain  of  the 
government  itself.'^  He  further  says  that  a  bank  "  whose 
stock  is  owned  partly  by  private  persons,  and  partly  by  the 
government,"  is  a  private  corporation. 

The  first  United  States  Bank  was  incorporated  with  a 
capital  of  $10,000,000,  and  the  second  with  a  capital  of 
$35,000,000.  The  "  government,"  under  the  first  charter, 
was  allowed  to  hold  $2,000,000,  and  under  the  second, 
$7,000,000  of  the  stock;  and  yet,  in  McCulloch  v.  Mary- 
land, decided  in  1820,  and  Osborn  v.  The  Bank,  decided  in 
1824,  Story  concurred  in  the  opinion  that  the  Bank  of  the 
United  States  was  "  a  public  corporation,  created  for  public 
and  national  purposes." 

That  Story  and  Marshall  had,  as  they  were  wont  to  do, 
decided  the  vital  question  upon  this  point,  raised  by  these 
cases,  years  before  it  came  before  them  judicially,  is  well 


UNITED    STATES    BANK BANK    CASES.  357 

known.  The  court  treated  the  United  States  Bank  as 
one  of  the  '<  mstrumentalities  of  the  government,"  and 
so  might  a  State  bank  be  treated  as  one  of  the  instrumen- 
talities of  a  State  government.  The  distinction  taken  was, 
to   say  the  least,  convenient. 

The  decision  in  Briscoe  v.  Bank,  etc.,  of  Kentucky  (11 
Pet.  257)  was,  "that  when  a  State  becomes  a  stockholder 
in  a  banking  institution,  it  imparts  none  of  its  attributes 
of  sovereignty  to  the  latter,  and  can,  as  a  stockholder, 
exercise  no  other  power  than  any  other  holder  of  stock  for 
the  same  amount." 

Judge  Story  said  :  ' '  When  this  cause  was  formerly  argued 
before  this  court,  a  majority  of  the  judges  who  then  heard 
it  were  decidedly  of  opinion  that  the  act  of  Kentucky 
establishing  this  bank  was  unconstitutional  and  void." 

The  decision  in  this  case  is  especially  noticeable  for  a 
reason  to  which  no  reference  has  been  made.  The  corpora- 
tion was  a  bank,  created  and  owned  entirely  by  the  State 
of  Kentucky.  It  came  fully  within  the  remarkable  defini- 
tion of  a  "  public  corporation  "  given  by  Story  in  Allen  v. 
McKeen,  to  wit,  one  where  the  "  wliole  interests  and  fran- 
chises are  the  exculsive  property  and  domain  "of  the  State  ; 
for  he  says,  in  his  opinion  in  Briscoe's  case:  "  It  is  clear, 
therefore,  that  the  bank  was  a  mere  artificial  body  or  cor- 
poration, created  for  the  sole  benefit  of  the  State,  and  in 
which  no  other  person  had  or  could  have  any  share  or 
interest."  He  then  went  on  to  hold  that  the  State  could 
not  confer  upon  such  a  corporation  the  power  to  issue 
bank-bills. 

If  these  opinions  are  well  founded,  either  the  fathers 
must  have  been  the  most  unfortunate  of  men  in  the  use 
of  language,  or  their  great,  if  not  paramount  purpose  must 
have  been,  Jirsi,  to  render  it  almost  impossible  for  a  State 
to  give  legal  existence  to  a  jDulilic  corporation  "  in  the  strict 
sense  ;"  and,  second,  if  perchance  such  an  artificial  person 
should  struggle  into  existence,  to  cut  down  its  powers  to 


358  DARTMOUTH  COLLEGE  CAUSES. 

the  lowest  limit ;  for  the  principle,  if  sound,  does  not  stop 
with  the  prohibition  against  the  issue  of  bank-bills.  If  such 
was  their  purpose,  it  is  incredible  that  they  should  not  have 
manifested  it  in  the  plainest  and  most  unequivocal  terms. 
There  is  not  a  shred  of  history  or  a  word  in  the  debates 
that  affords  any  warrant  for  such  an  inference.  The  proba- 
bilities are  millions  to  one  that  no  such  definition  or  distinc- 
tion, or  any  thought  of  either,  ever  occurred  to  the  mind 
of  any  member  of  the  Convention. 

But,  in  our  examination  of  the  history  of  these  opinions 
in  relation  to  the  distinction  between  public  and  private  cor- 
porations, we  have  been  often  forcibly  reminded  of  what  a 
snowy-haired  chief  justice  —  one  of  a  family  eminent  for  its 
scholars  and  jurists,  and  standing  high  on  the  roll  of  judicial 
fame,  both  in  State  and  nation  —  once  said  to  us  about  the 
mass  of  opinions  upon  constitutional  questions  :  ' '  They  are 
filled  with  ingenious  reasoning,  ingeniously  stated,  for  the 
purpose  of  enabling  the  court  to  reach  a  conclusion  at  which 
it  wishes  to  arrive." 

Story  adds,  in  relation  to  Bowdoin  College  :  "  The  Com- 
monwealth of  Massachusetts  is  its  founder,  having  given  it  its 
original  funds.  But  it  is  made  capable  of  receiving,  and  has 
actually  received,  funds  from  the  bounty  of  private  donors." 

Baron  Wood,  in  his  Institutes,  upon  abundant  authority, 
says  :  "  He  who  gives  the  first  possessions  is  the  founder  of 
it,  though  they  are  but  of  small  value  ;  so  that  a  common 
person  may  be  founder,  though  the  king  shall  afterwards 
endow  it  with  great  possessions."  It  is  enough  to  say  that 
this  duplex  rule,  by  which  a  "  iiublic  "  corporation  is  con- 
strued with  so  much  strictness  and  a  ' '  private  ' '  one  with 
such  "  liberality,"  was  never  heard  of  by  any  body  l)efore 
the  College  case.  Taken  in  its  obvious  sense,  and  with 
Story's  indorsement  of  the  argument  of  Mason  in  the  State 
court,  it  would  transform  the  generality  of  towns,  either 
essentially  or  absolutely,  into  private  corporations.  Not  a 
few  towns  were  chartered,  under  seal,  upon  a  consideration, 


THEORY    OF    FOUNDATION.  359 

ill  the  nature  of  a  periodic  rent  to  the  throne,  with  an  ab- 
solute grant  of  all  the  lands  in  the  town  to  the  persons 
therein  named,  who  were  endowed  with  "perpetual  suc- 
cession," with  a  variety  of  interests  reserved  either  to  the 
throne  or  for  the  benefit  of  private  individuals.  In  others 
the  power  to  divide  the  same,  etc.,  was  expressly  reserved  ; 
and  in  others  the  name  alone  was  given,  without  any  specifi- 
cation of  other  rights,  powers,  or  privileges. 

Coke,  in  the  case  of  Sutton's  Hospital,  says:  "As  to 
the  seventh  objection,  it  is  to  be  known  that  in  law  there 
are  two  manner  of  foundations  :  one,  fundatio  incipiens; 
the  other,  fundatio  perficiens;  and  therefore,  quatenus  ad 
capacitatem  et  JiahiUtatem,  the  incorporation  is,  metaphoynce, 
called  the  foundation,  for  that  is  the  bemnnino;  as  a  founda- 
tion,  quasi  fundamentum  capacitatis,  preceding  the  whole. 
*  *  *  8ed  quatenus  ad  dotationem,  the  first  gift  of  the 
revenues,  is  called  the  foundation,  and  he  loho  gives  it  is  the 
founder  in  latv,  for  piropria  fundatio  est  quasi  fundatio; 
and  the  first  gift  is  fundamentum  dotalionis  sen  collaiionis , 
et  appellatione  fundi  cedificium  et  ager  continentur ;  and  that 
is  proved  by  the  statute  of  West.  2,  c.  41.  *  *  *  And 
in  the  report  I  have  omitted  all  the  arguments  which  were 
made  at  large  upon  both  sides,  upon  one  common  ground, 
where  one  act  shall  at  one  instant  enure  to  divers  intents 
distinct  in  time,  some  holding  that  the  bargain  and  sale 
amounts  not  only  to  a  dotation,  but  also  to  a  foundation, 
and  other  totis  viribus  e  contra;  for  it  appears  to  you  now, 
without  question,  that  the  first  dotation  is  the  foundation." 
(5  R.  Part  X.,  pp.  *28,  *32.) 

If  Coke  and  Baron  Wood  were  right,  the  first  donation, 
no  matter  how  inconsiderable,  was  the  foundation. 

On  this  point,  Mr.  Hopkinson  urged  in  his  brief:  "  From 
this  it  is  clear  that  D.  W.'s  original  school  was  founded  by 
him  at  great  labor  &  expense  —  that  Dartmouth  was  but  an 
enlargement  of  that  seminary,  made  by  his  own  consent  — 
&  under  his  direction  &  control  and  so  considered  by  all  the ' 


360  DARTMOUTH  COLLEGE  CAUSES. 

parties.      How   otherwise    could   he    [be]    considered  the 
founder? 

"It  is  therefore  not  correct  in  point  of  fact  —  nor 
material  in  point  of  law,  to  say  he  contributed  nothing  to 
Dartmouth  College  if  this  College  is  but  a  graft  on  his 
orig-inal  stock  —  because,  the  law  is  clear  that  if  the  orio-i- 
nal  foundation  of  a  charity  is  ever  [so]  small,  &  subse- 
quent donations  or  additions  ever  so  large  ;  they  are  con- 
sidered but  additions  to  the  first  establishment,  submittins' 
to  its  power  &  coming  under  its  government.  It  is  seen  the 
contributor  may  grant  conditionally  or  unconditionally — 
if  the  latter  he  but  falls  into  &  under  the  first  institution. 
If  conditionally  the  first  founder  judges  whether  he  will 
accept  the  same.     *     *     * 

*'  We  make  out  our  claim  then  under  D.  W.  by  showing 
that  his  school  was  founded  by  himself  at  his  own  expense 
&  on  his  own  estate  —  that  this  College  is  but  an  enlarge- 
ment of  that  charity,  without  any  interference  with  his  claim 
or  right  as  its  founder  —  &  so  considered  by  all  the  parties 
at  the  time  as  appears  by  the  charter.     *     *     * 

"  We  answer  that  all  these  contributions  were  to  D.  W. 
and  his  school  —  before  the  charter  was  granted  or  perhaps 
contemplated  —  that  they  were  to  his  use  quoad  hoc,  — and 
that  when  they  afterwards  passed  to  the  College  —  they 
passed  as  part  of  his  establishment — as  his.     *     *     * 

"  We  contend  on  behalf  of  the  plaintiff:  — 

*'  1.  That  at  the  time,  and  before,  this  College  was  char- 
tered, Dr.  Wheelock  had  a  beneficial  and  pecuniary  interest 
in  the  funds  with  which  it  was  founded  ;  whether  it  shall  be 
considered  that  the  charter  merely  incorporated  the  old 
school  under  a  new  name  ;  or  that  the  College  was  raised 
on  the  foundation  &  funds  of  the  old  school." 

If  we  are  to  credit  Story,  a  majority  of  the  court  must 
have  indorsed  his  own  views  in  relation  to  public  and  pri- 
vate corporations,  and  apparently  the  view  of  Hopkinson  in 
relation  to  "  ^rafted  "   or  "raised"   foundations.     If  this 


FOUNDATION HOPKINSON's    BRIEF GRANTS.  361 

doctrine  in  relation  to  private  corporations  is  well  founded, 
and  if  the  first  donor,  no  matter  how  inconsiderable  the 
donation,  is  to  be  treated  as  the  founder,  how  can  any  sub- 
sequent donation  or  addition  divest  the  corporate  body  of 
its  character  as  a  private  corporation?  If  it  can,  why  does 
it  not  transform  it  into  a  public  one  ?  If  the  doctrine  of 
grafted  foundations  is  sound,  why  is  not  that  of  substi- 
tutionary foundations  equally  so  ? 

The  governor  had  granted  LandafF  to  individuals.  Went- 
worth  promised  Wlieelockto  annul  the  grant,  and  regrant  it 
to  Moor's  Indian  Charity-School.  He,  in  form,  annulled 
the  prior  grant  without  notice  to  the  first  grantees ,  and  trans- 
ferred it  to  the  College,  whose  trustees  were  compelled  to 
surrender  it  to  tlie  original  grantees,  whose  rights  had  been 
usurjied.  The  title  foiling,  the  State  substituted  another 
grant  in  place  of  the  former,  reserving  the  powers  already 
referred  to,  and  this  grant  was,  with  full  knowledge,  accepted 
by  the  corporation.  Why  was  not  the  State  the  founder  by 
substitution  ? 

Massachusetts  gave  the  first  lands  to  Bowdoin,  and  was, 
therefore,  the  founder. 

If  the  assumptions  of  the  court  to  which  we  have  already 
referred  were  warranted,  the  king  first  gave  Landaff  to 
Dartmouth,  and  was,  in  consequence,  its  founder.  If  a 
subsequent  gift  by  the  king  could  neither  change  the 
original  foundation  nor  the  nature  of  the  corporation  from 
private  to  public,  or  public  to  private,  it  is  difiicult  to 
understand  how  like  acts  by  private  indi-sdduals  could  have 
precisely  the  opposite  effect.  It  is  true  that  the  grant  of 
Landaff  was  overturned,  as  were  many  other  grants  by  the 
same  authority,  after  the  Revolution  ;  but  that  would  seem 
to  be  immaterial.  If  the  least  private  interest  transforms 
what  would  otherwise  be  a  public  into  a  private  corporation, 
it  would  be  a  work  of  great  difficulty  to  discover  a  public 
corporation  in  some  of  the  States.  The  Federal  Supreme 
Court  and  Story  assume  that  a  stream  of  decisions  ffowing 


3G2  DARTMOUTH  COLLEGE  CAUSES. 

from  the  sources  of  the  common  law  have  divided  all  cor- 
porations into  two  classes,  private  and  public.  This  dis- 
tinction has  probably  become  too  firmly  imbedded  in  the 
body  of  American  law  to  be  eradicated  ;  but  on  great  ques- 
tions which  affect  the  vital  interests  of  the  nation,  we  must, 
after  a  time,  recur  to  first  principles,  or  grope  blindly  after 
justice  through  a  bewildering  labyrinth  of  contradictions 
and  absurdities. 

Few  judges  equalled  Story,  either  in  industry  or  research. 
Through  his  whole  life  he  jotted  down  every  authority  which 
he  found  sustaining  any  opinion  he  had  advanced,  and  no 
judge  was  so  fond  of  parading  his  learning  as  he.  The 
only  authority  on  this  point  relied  upon  by  him,  in  the  Col- 
lege cause,  was  Dr.  Bury's  case,  decided  in  1694.  When 
he  came  to  decide  Allen  v.  McKeen,  in  1833,  after  fourteen 
3^ears  more  of  research  and  investigation,  he  was  only  able 
to  give  the  additional  authority  of  his  own  opinion  in  the 
College  case.  It  is  safe  to  say  that,  if  any  others  could 
have  been  found,  they  would  not  have  escaped  him. 

The  contrast  between  the  opinions  of  Washington  and 
Story  upon  this  point  is,  as  we  have  seen,  very  marked. 
Washington  simply  assumes  that  Dr.  Bury's  case  contains 
all  the  "doctrine"  on  the  subject,  and  that  no  case  has 
been  found  in  conflict  with  it. 

To  fully  comprehend  Phillips  v.  Bury,  and  the  cases  that 
followed  in  its  train,  a  knowledge  of  the  preexisting  law 
and  history  is  necessary. 

College  and  university  corporations,  like  others,  existed 
in  the  mother  country,  —  (1)  by  the  common  law;  (2) 
prescription  ;  (3)  letters-patent  from  the  crown  ;  (4)  grants 
in  the  ordinary  form  by  Parliament ;  and  (5)  by  what  were 
in  essence  "charters  of  confirmation,"  gi*anted  by  Parlia- 
ment, where  charters  had  been  lost,  or  where  the  "juris- 
diction, privileges,  and  statutes"  of  a  corporation  rested 
in  tradition . 

The  powers  which  they  had,  varied.     In  general,  among 


COLLEGE    AND    UNIVERSITY    CORPORATIONS.  363 

these  privileges  was  that  of  the  domestic  forum,  as  it  was 
termed,  — the  right  to  govern  and  correct  its  own  members, 
and  that  of  trying  all  civil  suits,  at  law  and  in  equity,  in 
which  one  of  the  parties  was  a  member,  no  matter  where 
the  other  might  be,  before  the  scholars,  master,  steward, 
visitor,  chancellor,  vice-chancellor,  or  other  corporate  judi- 
catories. This  was  extended,  in  some  instances,  to  nearly 
all  criminal  offences,  including  maim,  felony,  and  treason, 
as  well  as  misdemeanors.  Persons  claimed  these  privileges 
who  were  not  entitled  to  them,  as  well  as  those  who  were. 
Those  who  felt  aggrieved  at  this  claim  of  exclusive  juris- 
diction in  the  kingdom  brought  their  grievances,  praying 
for  interference  and  relief,  before  the  upper  bench,  in  the 
time  of  Cromwell,  upon  applications  for  mandamus^  pro- 
hibition, and  the  like.  The  same  course  was  pursued  early 
after  the  Restoration.  The  courts  early  established  the 
rule,  as  a  matter  of  sound  discretion,  that  they  would  not 
interfere  in  regard  to  the  private  or  domestic  constitutions 
and  statutes  of  such  societies,  but  would  as  to  the  public 
laws  of  the  land,  for  the  reason  that  over  them  the  founder 
could  give  the  visitor  no  exclusive  jurisdiction, — much  in 
the  same  way  as  our  courts,  as  regards  ecclesiastical  mat- 
ters, remit  the  parties  to  the  judicatories  established  by  the 
denomination  of  which  they  are  members.  The  loose  and 
inconsequential  dicta  in  one  of  the  English  cases,  in  relation 
to  private  and  public  corporations,  is  the  outgrowth  of  this 
view;  but  it  was  never  held  that  the  king's  courts  had  no 
jurisdiction  where  the  officers  of  the  corporation  neglected 
or  refused  to  take  the  proper  oaths,  as  did  the  officers  of 
Dartmouth  Colleo;e. 

Phillips  V.  Bury  was  the  famous  case  of  Exeter  College. 
Dr.  Bury  was  rector  in  1689.  On  October  16,  1689,  he 
deprived  John  Colmer,  one  of  the  fellows,  for  incontinency. 
Colmer  appealed  to  the  Bishop  of  Exeter,  visitor  of  the 
college.  The  bishop,  having  heard  the  appeal,  sent  his 
chancellor,  in  March,  1690,  to  the  college  to  restore  him; 


364  DAETMOUTH  COLLEGE  CAUSES. 

but  Bury  and  the  seven  senior  fellows  refused  to  give  him 
admittance.  On  July  26,  1690,  after  a  variety  of  proceed- 
ings, the  bishop  deprived  Dr.  Bury  for  contumacy,  and  put 
John  Painter  in  his  place  as  rector,  who  demised  to  the 
plaintiff ;  whereupon  the  plaintiff  entered  and  brought  suit 
against  the  defendant.  Justices  William  Gregory,  Giles 
Eyre,  and  Samuel  Eyre  held  that  judgment  should  be  given 
for  the  defendant;  but  Holt,  C.  J.,  held  otherwise.  Holt 
held  that  the  court  had  no  jurisdiction ;  the  others,  that 
it  had.  Holt's  opinion,  taken  from  his  own  manuscript, 
covers  nearly  thirteen  pages  (2  Term  Eep.  346-358),  and 
discusses  a  variety  of  questions.  He  held,  first,  that,  by 
the  particular  constitution  of  this  college,  the  Bishop  of 
Exeter  had  power,  in  this  case,  to  give  sentence  ;  and, 
second,  that,  having  that  power,  the  justice  of  that  sentence 
is  not  to  be  examined  in  a  court  of  law  upon  an  action. 
In  the  course  of  this  discussion,  he  says  :  "  And  that  we 
may  the  better  apprehend  the  nature  of  a  visitor,  we  are  to 
consider  that  there  are  in  law  two  sorts  of  corporations 
aggregate,  —  such  as  are  for  public  government,  and  such 
as  are  for  private  charity.  Those  that  are  for  the  public 
government  of  a  town,  city,  mystery,  or  the  like,  being  for 
public  advantage,  are  to  be  governed  according  to  the  laws 
of  the  land  ;  if  they  make  any  particular  private  laws  and 
constitutions,  the  validity  and  justice  of  them  is  examinable 
in  the  king's  courts.  Of  these  there  are  no  particular 
private  founders,  and  consequently  no  particular  visitor ; 
there  are  no  patrons  of  these.  Therefore,  if  no  provision 
be  in  the  charter  how  the  succession  shall  continue,  the  laAV 
supplieth  the  defect  of  that  constitution,  and  saith  it  shall 
be  by  election,  —  as  mayor,  aldermen,  common  council,  and 
the  like.  *  *  *  But  private  and  particular  corporations 
for  charity,  founded  and  endowed  by  private  persons,  are 
subject  to  the  private  government  of  those  who  erect  them  ; 
and,  therefore,  if  there  be  no  visitor  appointed  by  the 
founder,  the  law  appoints  the  founder  and  his  heirs  to  be 


DICTUM    OF    HOLT ARGUMENT    OF    STILLINGFLEET.       8G5 

visitors,  who  are  to  proceed  and  act  according  to  the  particu- 
lar laws  and  constitutions  assigned  them  by  the  founder." 

The  question  l)eforo  the  court  upon  this  branch  of  the 
case  was,  as  stated  hy  Lord  Holt  himself,  not  whether  cor- 
porations were  public  or  private,  but  whether  the  constitu- 
tion, the  statutes,  of  this  particular  college  excluded  the 
jurisdiction  of  the  courts  of  common  law.  He  held  that 
they  did.  It  is  obvious  that  what  we  have  quoted  from  him 
was  not  only  a  dictum,  but  loosely  worded  and  obscure  in 
meaning  at  that.  If  taken  as  it  reads,  all  banks,  and  the 
great  trading  and  industrial  corporations,  are  neither  public 
nor  private. 

The  House  of  Lords,  after  an  argument  by  Bishop  Stil- 
lingfleet,  reversed  the  judgment  of  the  three  judges,  holding 
that  the  courts  of  common  law  had  no  jurisdiction.  We  are 
not  aware  of  any  evidence  that  that  body  affirmed  the  dic- 
tum  of  Lord  Holt.  Bishop  Stillingfleet  based  his  argument 
mainly  upon  the  ground  of  policy. 

It  is  quite  evident  that  Webster  had  never  seen  Stilling- 
fleet's  report  of  the  case,  or  his  argument.  The  MS.  argu- 
ment of  Webster  shows  that  he  obtained  all  his  information 
on  the  subject  from  1  Burn's  Ecclesiastical  Law,  439-445. 
This  report  does  not  attemjDt  to  state  that  argument  with 
accuracy.     It  says  :  — 

"In  the  argument  whereof,  Bishop  Stillingfleet  spoke  to  this 
effect :  that  this  absolute  and  conclusive  power  of  visitors,  is  no 
more  than  the  law  hath  appointed  in  other  cases,  upon  commis- 
sions of  charitable  uses  ;  that  the  common  law,  and  not  any  eccle- 
siastical canons,  do  place  the  power  of  visitation  in  the  founder 
and  his  heirs,  unless  he  settle  it  upon  others  ;  that  although  a  cor- 
poration for  public  government  be  subject  to  the  courts  of  West- 
minster Hall,  which  have  no  particular  founders,  or  special  visitors, 
yet  corporations  for  charity  founded  and  endowed  by  private  per- 
sons are  subject  to  the  rule  and  government  of  those  that  erect 
them ;  but  where  the  persons  to  whom  the  charity  is  given  are 
not  incorporated,  there  is  no  such  visitatorial  power,  because  the 
interest  of  the  revenue  is  not  invested  in  them ;  but  where  they 


366  DARTMOUTH  COLLEGE  CAUSES. 

are,  the  right  of  visitation  ariseth  from  the  foundation,  and  the 
founder  may  convey  it  to  whom  and  in  what  manner  he  pleaseth ; 
and  the  visitor  acts  as  founder,  and  by  the  same  authority  which 
he  had,  and  consequently  is  no  more  accountable  than  he  had  been  ; 
that  the  king  by  his  charter  can  make  a  society  to  be  incorporated, 
so  as  to  have  the  rights  belonging  to  persons,  as  to  legal  capacities ; 
that  colleges,  although  founded  b}^  private  persons,  are  yet  incor- 
porated by  the  king's  charter;  but  although  the  kings  by  their 
charters  made  the  colleges  to  be  such  in  law,  that  is,  to  be  legal 
corporations,  yet  they  left  to  the  particular  founder's  authority  to 
appoint  what  statutes  they  thought  fit  for  the  regulation  of  them. 
And  not  only  the  statutes,  but  the  appointment  of  visitors  was  left 
to  them,  and  the  manner  of  government,  and  the  several  conditions 
on  which  any  persons  were  to  be  made,  or  to  continue,  partakers 
of  their  bount}'.  But  that  which  is  particularly  to  he  observed^  is, 
thai  these  founders  of  colleges  did  take  special  care  to  prevent,  as 
much  as  possible,  all  law-suits  among  the  members  of  their  societies, 
as  most  destructive  to  the  peace  and  xmity  of  their  body,  and  the 
tranquilily  necessary  for  their  studies;  for  they  knew  very  well,  that 
if  any  encouragements  were  given  to  suits  at  law,  those  jflaces  would 
in  time  become  nurseries  for  attornies  and  solicitors,  lohich  would 
pervert  the  main  design  of  their  foundation. 

"Walter  De  Merton,  the  first  founder  of  a  college  in  Oxford, 
with  revenues  to  support  it,  took  such  care  about  this,  that  he 
puts  the  case,  in  his  statutes,  of  a  warden's  being  deprived,  and 
knowing  that  men  are  apt  to  complain  when  they  suffer,  and  to 
endeavor  in  one  way  or  other  to  be  restored,  (which  causeth  great 
heats  and  animosities  among  the  contending  parties,)  therefore, 
to  prevent  these  mischievous  consequences,  he  puts  a  chapter  in 
on  purpose  in  his  statutes,  that  if  such  a  case  should  happen,  niiUa 
actio,  nullum  juris  remedium  canonici  vel  civilis  habeat." 

Neither  the  crown  nor  Parliament  had  in  any  wise 
attempted  to  alter,  amend,  or  repeal  the  charter,  or  the  con- 
stitutions or  statutes  brought  in  question  in  Dr.  Bury's  case. 
The  question  there  related  entirely  to  the  power  of  the 
courts  of  common  law  in  the  premises,  and  not  to  the  power 
of  the  crown,  Parliament,  or  any  legislative  body.  The 
statutes  and  constitutions  referred  to  were,  in  essence,  what 


FEDERAL    CONSTITUTION    MODIFIED    BY    "DICTUM."       367 

we  term  by-laws.  The  technical  difference  Avas,  that  they 
could  not  be  amended  or  annulled  except  by  virtue  of  a 
power  reserved. 

The  report  of  this  case  in  the  House  of  Lords  occupies 
about  twenty-four  pages  in  "  Showier' s  Cases  in  Parliament." 

The  view  taken  by  Chief  Justice  Holt  in  the  court  below, 
of  course,  was  urged,  as  well  as  a  variety  of  other  grounds. 

The  argument  and  decision  are  thus  summarized,  at  the 
close  of  the  report  of  the  case  :  — 

"  It  was  replied  in  behalf  of  the  plaintiff  much  to  the  same 
effect  as  't  was  argued  before,  and  great  weight  laid  upon  the  con. 
tumacy  which  hindered  the  observance  of  the  statutes ;  that  by 
allowing  such  a  behavior  in  a  college  no  will  of  the  founder  could 
be  fulfilled,  no  visitation  could  ever  be  had ;  and  all  the  statutes 
would  be  repealed  or  made  void  at  once  ;  that  tho  this  crime  was 
not  mentioned  't  was  as  great  or  greater  than  any  of  the  rest ;  that 
here  was  an  authority  and  well  executed  and  upon  a  just  cause  and 
in  a  regular  manner  so  far  as  the  rector's  own  misbehavior  did  not 
prevent  it,  and  therefore  they  prayed  that  the  judgment  might  be 
reversed :  and  upon  debate  the  same  was  reversed  accordingly. ' ' 

Notwithstanding  the  dictum  of  Story  that  the  dictum  of 
Holt  ties  the  hands  of  the  "government,"  it  is  apparent, 
as  we  have  already  seen,  that  this  must  refer  alone  to  the 
throne,  for  it  could  not  tic  the  hands  of  Parliament. 

Generations  to  come  may  well  marvel  when  thoy  realize 
that  this  obscure  and  contradictory  dictum  of  a  single  judge 
has  been  injected  into  the  Federal  Constitution,  by  con- 
struction, and  that  our  whole  system  of  government,  and 
the  vast  and  varied  interests  of  our  people,  must  be  regu- 
lated in  accordance  with  it.  They  might  as  well  have 
expected  that  the  mist  would  mould  the  granite. 

The  great  case  of  Charles  Eiver  Bridge  v.  Warren  Bridge 
was  formally  decided  February  14,  1837.  This  was  virtu- 
ally another  college  case.  In  1650,  Massachusetts  granted 
to  Harvard  the  power  to  dispose  of  a  ferry  between  Boston 
and  Charlestown,  over  Charles  River,  and  the  college  held 


368  DARTMOUTH  COLLEGE  CAUSES. 

this  ferry  under  this  grant  till  1785,  when  certain  persons 
were  incorporated  as  the  proprietors  of  the  Charles  River 
Bridge,  authorized  to  erect  a  bridge  where  the  ferry  was, 
and  to  take  tolls  for  forty  years,  and  were  to  pay  Harvard 
£200  annually  for  thus  destroying  the  ferry.  In  1792,  the 
charter  was  extended  thirty  years.  In  1828,  Massachusetts 
incorporated  the  proprietors  of  the  Warren  Bridge,  with 
power  to  erect  another  bridge  over  the  same  river.  The 
two  bridges  were  sixteen  rods  apart  on  the  Charlestown  side, 
and  fifty  rods  on  the  Boston  side.  The  charter  of  the  War- 
ren Bridge  was  to  expire  in  six  years,  and  then  be  free  to  all. 
As  was  obvious  to  the  mind  of  every  intelligent  man, 
the  effect  of  the  second  grant  was  to  materially  impair  the 
value  of  the  prior  grant  for  the  six  years,  and  thereafter  to 
render  it  essentially  worthless.  The  Charles  River  Bridge 
filed  a  bill  in  equity  against  the  Warren  Bridge,  at  the  March 
term  of  the  Supreme  Court  of  Massachusetts,  1828,  praying 
for  a  temporary  injunction  to  restrain  the  defendants  from 
buildinir  a  bridiye  under  the  charter,  and  also  from  suffering 
passengers  to  go  over  it.  The  court  (6  Pick.  376-407) 
unanimously  denied  the  motion.  In  7  Pick.  344-532,  the 
court  were  equally  divided  upon  the  main  question.  The 
bill  was  therefore  dismissed,  and  the  case  went  up  on  error 
from  the  March  term,  1829,  to  the  Federal  Supreme  Court. 
The  great  question,  of  course,  was  whether  the  second  grant 
was  prohibited  by  the  obligation  clause.  It  was  heard 
before  Marshall,  and  afterwards  before  Taney.  The  last 
argument  was  made  in  January,  1837.  Story  prepared  his 
opinion  more  than  five  years  before  the  decision.  In  his 
letter  to  Mason,  of  November  19,  1831,  he  says;  "  I  am 
now  encragced  on  the  Charles  River  Bridge  case.  After  it  is 
finished  I  should  be  glad  to  have  you  read  it  over,  if  I  thought 
it  might  not  give  you  too  much  trouble.  It  is  so  important 
a  constitutional  question,  that  I  am  anxious  that  some  other 
mind  should  see,  what  the  writer  rarely  can  in  his  zeal, 
whether  there  is  any  weak  point  which  can  be  fortified,  or 


CHARLES    RIVER    BRIDGE    CASE STORy's    OBJECT.        3G9 

ought  to  be  abandoned.  The  general  structure  of  the  argu- 
ment, I  hope,  is  sound;  but  all  the  details  may  not  be." 
(Mason's Mem.  335. )  Mason,  in  his  reply,  of  November  24, 
1831,  says  :  "I  will  most  willingly  examine  your  opinion  on 
the  case  you  mention,  and  give  you  the  result  of  my  reflections 
on  it."  (Mason's  Mem.  336. )  In  his  letter  of  December  23, 
1831,  to  Mason,  Story  says  :  "  Owing  to  my  recent  illness, 
from  Avhich  I  am  now,  as  I  trust,  entirely  recovered,  the  prep- 
aration of  my  opinion  in  the  Charles  River  Bridge  case  was 
suspended.  I  have  just  completed  it ;  and  it  is  to  be  copied, 
and  I  hope  to  send  it  to  you  by  the  middle  of  the  next  week. 
If  you  should  have  examined  it  sufficiently  to  give  your 
opinion,  I  should  be  glad  to  receive  it  before  I  go  to  Wash- 
ington, which  will  be  by  Sunday,  the  2d  of  January.  If 
not,  I  will  thank  you  to  send  it  to  me  by  mail  at  Washing- 
ton. I  wish  to  make  some  remarks  to  explain  its  great 
length  and  the  repetition  of  the  same  suggestions  in  different 
parts  of  the  same  opinion.  I  have  written  my  opinion  in 
the  hope  of  meeting  the  doubts  of  sotne  of  the  brethren, 
which  are  various,  and  apply  to  different  aspects  of  the 
case.  To  accomplish  my  object,  I  felt  compelled  to  deal 
with  each  argument  separately,  and  answer  it  in  every  form, 
since  the  objections  of  one  mind  were  different  from  those 
of  another.  One  of  the  most  formidable  objections  is  the 
rule  that  royal  grants,  etc.,  are  to  be  strictly  construed; 
another  is  against  implications  in  legislative  grants  ;  another 
is  against  monopolies  ;  another  is  that  franchises  of  this 
sort  are  bounded  by  local  limits  ;  another,  that  the  construc- 
tion contended  for  will  bar  all  public  improvements.  I  have 
been  compelled,  therefore,  to  restate  the  arguments  in  dif- 
ferent connections.  /  have  done  so,  hoping  in  this  way  to 
gain  allies.  I  should  otherwise  have  compressed  my  oiDinion 
within  half  the  limits."  (Mason's  Mem.  336,  337. )  Story 
undoubtedly  spoke  for  himself  and  the  dead  chief  justice, 
and  his  opinion  was  entirely  consistent  with  those  given  by 
him  in  the  College  causes. 

24 


370  DARTMOUTH  COLLEGE  CAUSES. 

The  argument  of  Marshall  on  this  point,  in  Fletcher  v. 
Peck,  as  his  reference  to  Blackstone  shows,  is  that  a  grant 
by  the  State  stands  in  the  same  place  as  an  executed  sale  of 
a  horse  by  A.  to  B.  ;  or,  if  we  are  to  believe  Webster,  the  gift 
of  a  sum  of  money  from  C.  to  D.  The  opinions  in  the  Col- 
lege cases  rest  upon  the  same  foundation.  But  the  majority 
of  the  judges  in  the  Bridge  case  evade  this  underlying  prin- 
ciple by  a  flank  movement.  They  say,  in  effect,  that  though 
a  grant  by  the  king  to  A.  is,  in  a  constitutional  sense,  as 
much  a  contract  as  one  between  B.  and  C,  yet  the  grantee 
in  the  first  case  takes  nothing  by  implication,  while  exactly 
the  reverse  is  true  in  the  second  case ;  and  that  therefore 
one  is,  in  efiect,  protected  by  the  Constitution,  while  the 
other  is  not. 

While  we  are  clear  that  the  decision  in  the  Bridge  case 
was  right,  we  are  equally  clear  that  an  unsound  reason  was 
given  for  it.  Chancellor  Kent,  whose  view  in  relation  to 
this  distinction  was  indorsed  by  a  large  majority  of  the 
great  lawyers  of  his  day,  said,  in  his  letter  to  Story,  of  June 
23,  1837  :  "  I  abhor  the  doctrine  that  the  legislature  is  not 
bound  by  everything  that  is  necessarily  implied  in  a  contract, 
in  order  to  give  it  effect  and  value,  and  by  nothing  that  is 
not  expressed  in  hcec  verba  ;  that  one  rule  of  interpretation 
is  to  be  applied  to  their  engagements,  and  another  rule  to 
the  contracts  of  individuals." 

The  decision  in  the  Bridge  case  was  right,  for  exactly  the 
same  reasons  that  the  argument  in  Fletcher  v.  Peck  and  the 
opinions  in  the  College  cases  were  wrong. 


CHAPTER     XY. 

CONSTITUTIONS  —  VIEWS  OF  GOUVERNEUR  MORKIS  — CON- 
STITUTIONAL AMENDMENTS  —  IMPEACHMENT  —  CRAIG  v. 
MISSOUKI  — BRISCOE  v.  BANK  — OSBOUN  v.  BANK  — JUDGE 
MARSHALL  — EARLY  HISTORY  — POLITICAL  LIFE  — THE 
VIRGINIA  CONVENTION —"  THE  FEDERALIST  "-=- HAMILTON 
AND  ADAMS  — PARTY  NAMES  MISNOMERS  —  MARSHALL 
AND  JEFFERSON  — THE  PRIMITIVE  COURT  — APPOINTxMENT 
OF  MARSHALL  AS  CHIEF  JUSTICE  —  JUDICIAL  LIFE  — MAR- 
BURY  V.  MADISON  —  OGDEN  v.  SAUNDERS  —  ALLEN  v.  Mc- 
KEEN  — STURGES  v.  CROWNINSHIELD  —  GIBBONS  v.  OGDEN 
—  ACTS  OF  PARLIAMENT,  THE  "LAW  OF  THE  LAND"  — 
FLETCHER  v.  PECK  —  POSITION  OF  COUNSEL  —  EXECUTORY 
AND  EXECUTED  CONTRACTS  —  GRANTS  —  ESTOPPEL. 

Constitutions  are,  in  theory  or  in  fact,  a  restraint  upon 
"  those  in  authority."  They  vary  in  form' with  time,  place, 
and  circumstance.  The  British  Constitution  is  a  mass  of 
traditions  and  customs  inwrought  by  the  conservative  tem- 
per of  the  classes  which  create  and  control  the  two  great 
estates  of  the  realm  ;  the  constitutions  of  several  of  the 
colonies  were  royal  commissions  ;  the  constitution  of  Russia 
was  a  wholesome  fear  of  assassination ;  and  in  the  United 
States  the  Constitution  is,  in  form,  a  written  instrument, 
but  in  fact  what  five  or  six  men  on  the  Supreme  Bench  see 
fit  to  make  it.  Gouverneur  Morris,  one  of  the  greatest  of 
its  framers,  called  the  experiment  "  a  vain  attempt  to  tie  up 
the  arm  of  government  with  paper  bands."  This  is  the 
point  where  our  institutions  touch  despotism  the  nearest. 
The  moss-grown  rule  is,  that  judges  shall  not  make,  but 
construe,  laws,  and  interpret  constitutions  ;  but  this  rule 
cannot  remould  humau  nature.     If  the  judges  err  in  their 

("71) 


372  DARTMOUTH  COLLEGE  CAUSES. 

interpretation,  either  through  mistake,  inadvertence,  bias, 
or  design,  the  same  result  follows, — they  alter,  amend,  or 
repeal  the  provisions  of  the  Constitution.  For  this  there 
is  no  remedy. 

The  influences  to  which  w^e  have  already  referred  may 
afi'ect  the  action  of  the  court,  but  the  judges  are  beyond  the 
control  of  public  opinion. 

The  fathers  borrowed  from  Great  Britain  the  forms  of 
impeachment.  In  1820,  Jefferson  termed  it  "an  impracti- 
cable thing,  a  mere  scare-crow ; ' '  and  the  writer,  not  to 
speak  of  other  instances,  who  has  seen  Underwood,  at  Rich- 
mond, occupying  the  seat  of  John  Marshall,  has  a  realizing 
sense  of  what  Jeflerson  meant.  To-day  it  hardly  rises  to 
the  dignity  of  a  farce.  Impotent  for  good,  these  provisions 
must  be  a  dead  letter  in  the  future,  unless  revived  as  an  in- 
strument of  partisan  vengeance,  when  both  housies  are 
controlled  by  the  same  party. 

The  Constitution  provides  for  its  amendment,  but  the 
process  is  slow,  uncertain,  and  useless  unless  the  judges 
favor  it.  In  1793,  in  Chisholm  v.  Georgia,  Jay,  true  to  his 
idea  that  States  were  but  county  corporations,  sought,  con- 
trary to  the  opinion  of  Hamilton  and  Marshall,  to  bring  the 
defendant  State  to  the  bar  of  his  court,  just  as  he  would  the 
members  of  a  quoit  club,  or  an  incorporated  cheese  factory. 
The  people  reversed  that  decision,  by  the  Eleventh  Amend- 
ment. 

In  1821,  Judge  Marshall,  in  Cohens  v.  Virginia,  by  a  "  lib- 
eral ' '  interpretation  of  the  original  provisions  and  by  a 
"  strict  construction  "  of  that  amendment,  nullified  the  pur- 
pose of  the  people  in  adopting  it,  by  holding  that  it  did  not 
apply  where  the  original  proceeding  was  instituted  by  the 
State,  and  that  the  prohibition  was  addressed  to  the  Federal 
courts. 

The  Federal  Constitution  provides  that  ' '  no  State  shall 
*     *     *     emit  bills  of  credit." 

In  Craig  v.  Missouri,  4  Pet.  410,  and  Briscoe  v.  Bank, 


ELEVENTH  AMENDMENT  AND  MARSHALL'S  DOCTRINE.       373 

8  Pet.  118,  11  Pet.  328,  329,  350,  where  the  State  owned 
the  bank,  Marshall  decided  that  the  bank  and  the  State 
were  one,  and  were  to  be  treated  as  identical,  saying,  in 
answer  to  the  suggestion  that  they  were  not :  "Is  the  prop- 
osition to  be  maintained  that  the  Constitution  meant  to 
prohibit  names,  and  not  things  ?  That  a  very  important  act, 
big  with  great  and  ruinous  mischief,  which  is  expressly  for- 
bidden by  words  most  appropriate  for  its  description,  may 
be  performed  by  the  substitution  of  a  name  ?  That  the  Con- 
stitution, in  one  of  its  most  important  provisions,  may  be 
openly  evaded  by  giving  a  new  name  to  an  old  thing  ?  ' ' 

Yet  in  1824,  in  Osborn  v.  Bank,  9  Wheat.  738,  which 
was  a  bill  brought  by  the  bank,  in  the  Circuit  Court,  to 
restrain  the  State  auditor  of  Ohio  from  collecting  a  tax, 
etc.,  Marshall  held  that,  "  as  the  State  cannot  be  joined  as  a 
defendant,  its  agent  maybe  sued  alone;"  and  that  "the 
prohibition  to  sue  a  State  contained  in  the  Eleventh  Amend- 
ment to  the  Constitution  does  not  extend  to  cases  in  which  a 
State  is  not  made  a  party  on  the  record,  even  if  the  State  has 
the  entire  ultimate  interest  in  tlie  subject-matter  of  the  suity 

It  is  obvious  that  a  State  cannot  exist  or  act  except  by 
and  through  its  officers,  and  that  for  such  purpose  they  are 
the  State. 

The  decision  is,  in  effect,  that  the  amendment  did  not 
prohibit  the  bringing  of  suits  against  the  State,  and  was 
not  so  intended,  but  simply  changed  the  form  of  the  process 
and  of  the  docket-entry,  and  provided  that  the  name  of  the 
State  should  be  struck  out,  and  those  of  its  officers,  its  other 
self,  should  be  substituted  for  it. 

This  decision  reduces  the  amendment  to  a  quibble  about 
forms.  Whether  the  amendment  was  wise  or  otherwise,  was 
one  thing ;  what  it  meant  was  another.  That  Marshall 
thought  it  unwise,  and  cut  its  heart  out  by  a  judicial  re- 
peal, is  evident.  Taken  with  recent  decisions  on  the  tax 
power,  it  comes  to  this :  The  officers  of  a  State  are  the 
State .     Therefore ,  — 


374  DARTMOUTH  COLLEGE  CAUSES. 

1 .  The  State  cannot  be  taxed  [out  of  existence]  by  taxing 
its  officers. 

2.  A  State  cannot  be  sued. 

3.  A  State  can  be  sued  [out  of  existence]  by  suing  its 
officers. 

And  this  impotent  conclusion  comes  from  one  who,  before 
the  amendment,  after  weeks  of  deliberation,  announced  to 
the  Virginia  Convention  that  a  State  could  not  be  sued 
at  all. 

The  same  fate  befell  another  amendment,  in  the  Slaughter- 
House  cases. 

In  1856,  in  Scott  v.  Sandford,  19  How.  393,  the  court  held 
that  Congress  could  not  prohibit  slavery  in  territory  ac- 
quired by  the  Federal  government  by  treaty.  This  decision 
was  reversed,  a  few  years  later,  by  a  gigantic  civil  war. 

Few  men  desire  a  repetition  of  the  farce  of  impeachment, 
or  the  fruitless  experiment  of  attempting  to  restrain  the 
judges  by  constitutional  amendments,  or  the  costlier  one  of 
reversing  decisions  by  a  resort  to  arms. 

John  Marshall  had  no  hand  in  forming  the  Federal  Con- 
stitution, but  for  twenty-six  out  of  the  thirty-four  years  of 
his  judicial  life  that  Constitution  was,  through  compromise 
or  otherwise,  what  he  saw  fit  to  call  it. 

The  life  and  acts  of  such  a  man  should  be  scrutinized 
with  care  and  weighed  with  candor. 

IMind  and  body  harmonized  with  each  other,  but  in  both 
Marshall  was  unlike  other  men,  —  an  extraordinary  and  pecu- 
liar being.  He  was  tall,  —  six  feet  in  height,  —  thin,  slender, 
angular,  meagre,  and  emaciated,  but  erect  and  agile,  while 
his  muscles  were  so  relaxed  and  joints  so  loose  as  to  destroy 
all  harmony  in  his  movements  and  grace  in  his  actions.  His 
complexion  was  swarthy ;  his  head  was  small,  covered  with 
shocks  of  thick,  stout,  wiry  hair,  raven  black  ;  his  forehead 
was  rather  low,  but  upright,  and  full  in  the  temples  ;  his 
face  was  small,  making  nearly  a  circle  in  its  outline ;  his 
eyes  were  small,  twinkling,  piercing,  and  dark  as  midnight; 


DUEL)    tSCOTT    CASE MAIISHALL's    EDUCATION.  375 

his  voice  was  dry  and  hard  ;  his  attitudes,  at  best,  extremely 
awkward,  and  his  onl}'-  gesture  in  speaking  w^as  a  perpendicu- 
lar swinsf  of  the  ri^ht  arm,'  He  was  of  Welsh  descent,  and 
was  the  oldest  of  fifteen  children.  His  father  was  a  Virginia 
planter  and  surveyor,  of  limited  means.  He  was  born  in 
Fauquier  County,  September  24,  1755,  and  died  in  Phila- 
delphia, July  6,  1835.  Previous  to  the  Revolution,  he 
resided  most  of  the  time  near  Manassas  Gap  and  at  Oak 
Hill.  Society  there  was  ver}'"  primitive.  The  people  lived 
on  mush  and  balm  tea,  and  the  Avomen  fastened  their  dresses 
with  thorns,  instead  of  pins.  The  population  was  sparse, 
accessible  schools  were  unknown,  and  facilities  for  acquiring 
knowledge  were  exceedingly  limited.  Until  his  fourteenth 
year,  his  father  was  his  only  instructor.  He  spent  his 
fifteenth  year  with  James  Monroe,  a  hundred  miles  from 
home,  in  the  study  of  Latin,  under  the  private  tutorship  of 
a  clergyman  ;  the  next  year  he  continued  his  studies,  under 
the  supervision  of  a  Scotch  parson,  in  his  father's  family ; 
and  this  was  all  the  education  he  had. 

Early  in  his  eighteenth  year  he  commenced  the  study  of 
the  law,  but  the  din  of  the  approaching  conflict  compelled 
him  to  abandon  Blackstone  and  turn  to  other  pursuits.  In 
the  spring  of  1775  he  was  made  lieutenant  in  a  militia  com- 
pany, and  soon  after  first  lieutenant  in  one  of  "Minute 
Men;"  in  December,  1775,  he  was  in  the  battle  of  Great 
Bridge,  about  twelve  miles  from  Norfolk  ;  in  July,  1776,  he 
was  appointed  lieutenant  in  the  Eleventh  Virginia  (Conti- 
nentals), and  in  the  winter  of  1776-7  joined  the  army  at 
Morristown ;  in  May,  1777,  he  was  made  captain,  and  was 
in  the  engagement  at  Iron  Hill,  at  Brandywine  in  Septem- 
ber, at  Germantown  in  October,  and  went  into  winter  quar- 
ters at  Valley  Forge  in  December  following.  He  Avas  at 
Monmouth  in  June,  1778  ;  with  Wayne  at  Stony  Point,  and 
at  PoAvle's  Hook  in  July,  1779.  In  the  winter  of  1779-80 
he  attended  the  law  lectures  of  Wythe,  —  afterwards  chan- 
cellor,—  at  William  and  Mary's  College,  retained  his  con- 


376  DARTMOUTH  COLLEGE  CAUSES. 

nection  till  the  summer  of  1780,  and  soon  after  obtained  a 
license  to  practise.  In  October,  1780,  he  returned  to  the 
army,  and  remained  till  1781,  when  he  resigned  his  com- 
mission, and  devoted  himself  to  the  study  of  his  profession 
till  after  the  surrender  of  Cornwallis,  in  October,  1781, 
when  the  courts  were  reopened.  After  the  Revolution,  he 
became  a  general  of  the  State  militia,  and,  in  consequence, 
from  that  time  till  1801,  when  he  was  made  chief  justice, 
was  almost  entirely  known  as  General  Marshall.  In  the 
spring  of  1782,  he  was  elected  a  member  of  the  lower  house 
from  his  native  county  ;  and  in  the  autumn,  to  the  executive 
council.  In  January,  1783,  he  married,  and  removed  to 
Richmond,  where,  in  spite  of  the  flattering  inducements 
held  out  if  he  would  remove  to  Philadelphia,  he  resided  till 
his  death.  Early  in  1784,  he  resigned  his  place  in  the  coun- 
cil, and  in  the  spring  was  again  elected  a  member  from  Fau- 
quier, and  represented  Henrico  from  1787  till  1792.  In  1788, 
he  was  one  of  the  lieutenants  of  Madison,  Randolph,  Pen- 
dleton, and  Inuis,  in  the  Convention  of  June,  which  ratified 
the  Federal  Constitution;  from  1792  till  1795,  he  devoted 
himself  almost  entirely  to  his  large  and  constantly  increas- 
ing practice ;  in  1795-6,  he  again  represented  Henrico  ;  in 
May,  1797,  he  was  appointed,  and  in  July,  with  Pinckney 
and  Gerry,  left  the  country,  as  envoy  to  France ;  and  on 
June  17,  1798,  he  returned  to  New  York.  He  was  elected 
a  member  of  Congi*ess  from  the  Richmond  district  hy  a 
small  majority,  and  took  his  seat  at  the  December  session, 
1799.  On  June  13,  1800,  after  the  explosion  in  the  cabinet 
cabal,  which  had  been  inherited  by  Adams,  he  was  made 
secretary  of  State,  and  continued  a  controlling  spirit  in  the 
cabinet  until  the  last  hours  of  that  administration.  On 
January  20,  1801,  Adams  nominated  him  as  chief  justice  ; 
he  was  confirmed  January  27,  and  commissioned  on  January 
31,  and  presided  at  the  term  Avhich  ended  February  9,  of 
the  same  year. 

Marshall  had  rare  o-ifts.     His  character  was  the  result  of 


MARSHALL CHARACTERISTICS STRENGTH  OF  MIND.      377 

a  peculiar  interblending  of  many  opposites  ;  its  power  lay 
ill  the  combination. 

He  was  simple  and  unpretentious,  and  as  modest,  sensi- 
tive, and  averse  to  every  form  of  notoriety  as  he  was  cour- 
ageous ;  he  had  an  ardent  social  nature,  a  seductive  personal 
magnetism  ;  he  was  a  delightful  companion,  fluent  and  facile 
in  conversation,  and,  aside  from  Andrew  Johnson,  the  most 
eloquent  listener  in  the  Union  ;  he  was  full  of  sly,  waggish 
humor,  genial  and  convivial ;  his  temper  was  serene  and 
imperturbable,  his  patience  almost  inexhaustible,  and  his 
judgment  clear,  cool,  wary,  and  calculating.  In  youth  and 
early  manhood  he  delighted  in  foot-races  and  the  rough 
sports  of  the  country,  and  was  as  full  of  poetic  longings, 
aspirations,  day-dreams,  and  romances  as  a  school-girl. 
Naturally  indolent,  and  seldom  studious,  from  boyhood  to 
the  "yellow  leaf"  of  old  age  his  soul  revelled  in  quoit- 
pitching  by  day  and  novel-reading  by  night.  Like  Webster, 
he  loved  a  plain  house  and  a  sumptuous  board,  loved  solid 
power  and  the  luxury  of  ease  ;  and,  like  Everett,  loved  the 
old  home,  old  scenes,  old  friends,  and  old  wine.  He  never 
sought  office  ;  cared  little  for  place,  nothing  for  titles.  He 
was  a  born  diplomatist,  and  showed  himself  an  overmatch 
for  Talleyrand,  with  all  the  latter' s  training.  He  was  a 
natural  politician,  and,  in  general,  knew  thoroughly  the 
public  men  of  Virginia  and  Maryland,  with  whom  he  was 
brought  in  personal  contact,  and  but  little  of  those  in  the 
rest  of  the  Union.  His  powers  of  analysis,  like  those  of 
Fox,  were  singularly  acute  ;  no  man  could  be  clearer,  if 
he  chose,  in  statement  or  in  reasoning ;  but,  when  hard 
pressed,  his  subtlety  in  both,  equalled  only  by  that  of 
Aaron  Burr  in  practice,  enabled  him  to  ascend  into  the 
clouds,  beyond  the  reach  of  ordinary  minds.  He  cared 
little  for  authority,  but  relied  mainly  on  his  o^vn  reflections. 

With  Story  the  test  was,  "  The  policy  of  the  law  is ;  " 

with  Marshall,  "  I  have  not  looked  much  into  the  cases,  but 
I  think  the  law  ought  to  be ;"   or,   as   Story  says, 


378  DARTMOUTH  COLLEGE  CAUSES. 

"  While  I  am  compelled  to  creep  from  point  to  headland, 
Marshall  puts  out  to  sea."  Without  imagination,  his  mind 
was  essentially  mathematical  and  legislative.  He  loved  not 
Coke,  the  stern  old  framer  of  the  Petition  of  Right,  but  the 
courtly  Blackstone.  He  lacked  the  attainments  of  Jay,  the 
great  legal  learning  and  the  superb  organizing  genius  of 
Rutledge.  Great  opportunities  were  afforded  him  during 
his  long  judicial  life,  which  Ellsworth  never  had ;  but  the 
kingly  dignity,  the  exalted  conscience,  the  immutability  of 
will,  and  the  slow  but  ponderous  intellect  of  the  latter 
were  wanting. 

"  Never  in  the  flow  of  time,"  to  use  the  words  of  Gouver- 
neur  Morris,  was  there  a  moment  so  propitious  for  that 
purpose  as  when  the  work  of  the  Federal  Convention  was 
submitted  for  ratification.  The  ablest  and  purest  men  in 
the  Union  were  arrayed  on  the  one  side  or  the  other.  Tal- 
ent, tact,  and  management  carried  it  in  New  York,  Massa- 
chusetts, and  New  Hampshire  by  a  close  vote,  and  in  reality 
against  the  popular  will. 

The  parties  which  subsequently  arose  were  called  Federal 
and  Republican.  Both  were  misnomers.  The  Federalists 
were  not  opposed  to  a  republic,  nor  were  the  Republicans 
opposed  to  a  federal  government.  The  Constitution  itself 
was  a  compromise,  and,  as  was  justly  said  by  Ellsworth  and 
Madison,  "partly  national  and  partly  federal."  Both 
were  in  favor  of  conferring  upon  the  general  government 
such  powers  as  they  deemed  necessary  for  its  preservation. 

The  difference  was,  as  it  were,  a  question  of  political 
geography, — where  the  boundary-line  between  the  powers 
conferred  upon  the  Federal  government,  and  those  retained 
by  the  States  or  peoj^le,  should  be  located  ;  and,  as  a  con- 
sequence, one  party  became  known  as  "liberal"  and  the 
other  as  "  strict  "  constructionists.  Behind  each  of  these 
phrases  lay  a  fundamental  idea  ;  but  the  terms  themselves, 
as  the  subsequent  history  of  parties  and  the  country  has 
abundantly  shown,  were  elastic  and  indefinite,  admirably 


EATIFICATION    OF    CONSTITUTION HAMILTON.  379 

adapted  to  political  exigencies  and  the  needs  of  politicians. 
There  was,  of  course,  a  general  accord  in  the  views  of  the 
leaders  of  the  respective  parties,  but  those  of  Jay,  Hamil- 
ton, Adams,  Marshall,  and  Story  were  far  from  identical ; 
and  the  same  is  true  of  Jefferson,  Madison,  and  Gerry, 
though  with  them  the  differences  were  less  marked.  The 
first  four  favored  the  ratification, — part  because  they 
believed  in  it,  and  the  rest  as  a  choice  of  evils.  Patrick 
Honry  and  Luther  Martin,  who  afterwards  became  such 
eminent  Federalists,  exerted  their  great  powers  to  the  utter- 
most against  it,  and  Gerry  followed  in  their  train.  In  the 
Virginia  Convention,  Madison  was  the  great  leader,  —  "  the 
cloud  by  day  and  the  pillar  of  fire  by  night ' '  of  its  sup- 
porters. Jefferson  was  abroad.  Had  he  thrown  the  posi- 
tive weight  of  his  great  influence  into  the  scale  against  it, 
the  probabilities  are  very  strong  that  no  human  power  could 
have  secured  in  its  favor  a  majority  of  the  Virginia  Con- 
vention. 

The  name  of  Washington  was  undoubtedly  more  potent, 
but  no  one  man,  by  his  own  exertions,  contributed  so  much 
to  secure  the  ratification  as  Hamilton ;  and  yet,  anomalous 
as  that  may  seem,  few,  even  of  its  opponents,  had  less  faith 
in  it,  or  disliked  it  more.  In  the  Convention,  on  Septem- 
ber 6,  1787,  he  said  "that  he  had  been  restrained  from 
entering  into  the  discussions  by  his  dislike  of  the  scheme  of 
government  in  general,  but  as  he  meant  to  support  the  plan 
recommended,  as  better  than  nothing,  he  wished,  in  his 
place,  to  make  a  few  remarks." 

In  the  closing  hours  of  the  Convention,  September  17, 
1787,  he  said  :  "  No  man's  ideas  were  more  remote  from  the 
plan  than  his  were  known  to  be  ;  but  is  it  possible  to  delib- 
erate between  anarchy  and  convulsion  on  one  side,  and  the 
chance  of  good  to  be  expected  from  the  plan  on  the  other  ?  ' ' 

We  owe  to  him  "  The  Federalist."  For  that  great  work 
he  selected  for  his  associate  his  intimate  personal  and 
political  friend,  Gouverneur  Morris.     In  his  letter  of  Feb- 


380  DARTMOUTH  COLLEGE  CAUSES. 

ruary  24,  1815,  to  Hills,  Morris  says:  "I  was  warmly 
pressed  by  Hamilton  to  assist  in  writing  '  The  Federalist,' 
which  I  declined." 

There  were  obvious  reasons  for  Hamilton's  choice,  one  of 
which  appears  in  the  letter  of  Morris,  of  December  22, 
1814,  to  Pickering,  the  discarded  secretary  of  John  Adams  : 
"  That  instrument  [the  Constitution]  was  written  by  the 
fingers  which  ^vrite  this  letter."  Madison  —  and  Jay,  to  a 
limited  extent  —  took  the  place  of  Morris.  No  man  knew 
the  difficulty  referred  to,  or  the  views  of  Hamilton,  better 
than  Morris.  In  his  letter  to  Walsh,  of  February  5,  1811, 
he  thus  states  the  fears  of  the  fathers:  "Fond,  however, 
as  the  framers  of  our  National  Constitution  were  of  repub- 
lican government,  they  were  not  so  much  blinded  by  their 
attachment  as  not  to  discern  the  difficulty,  perhaps  imprac- 
ticability, of  raising  a  durable  edifice  from  crumbling 
materials.  History,  the  parent  of  political  science,  had  told 
them  that  it  was  almost  as  vain  to  expect  permanency  from 
democracy  as  to  construct  a  palace  on  the  surface  of  the 
sea."  In  the  letter  last  quoted,  Morris  says:  "General 
Hamilton  had  little  share  in  forming  the  Constitution.  He 
disliked  it,  believing  all  republican  government  to  be  radi- 
cally defective.  He  admired,  nevertheless,  the  British  Con- 
stitution, which  I  consider  an  aristocracy  in  fact,  though  a 
monarchy  in  name.  *  *  *  He  heartily  assented,  never- 
theless, to  the  Constitution,  because  he  considered  it  as  a 
band  which  might  hold  us  together  for  some  time,  and  he 
knew  that  national  sentiment  is  the  oflEspring  of  national  ex- 
istence. He  ti'ustedy  moreover^  that,  in  the  changes  and 
chances  of  thne,  we  should  be  involved  in  some  war,  which 
might  strengthen  our  union  and  nerve  the  executive.  He  was 
not,  as  some  have  supposed,  so  blind  as  not  to  see  that  the 
president  could  purchase  power,  and  shelter  himself  from 
responsibility  by  sacrificing  the  rights  and  duties  of  his 
office  at  the  shrine  of  influence." 

In  his  letter  to  Ogden,  of  December  28,  1804,  he  says : 


Hamilton's  views  —  influence  over  Marshall.     381 

**  Our  poor  friend  Hamilton  bestrode  his  hobby,  to  the  great 
annoyance  of  his  friends,  and  not  ^\dthout  injury  to  himself. 
More  a  theoretic  than  a  practical  man,  he  was  not  sufficiently 
convinced  that  a  system  may  be  good  in  itself  and  bad  in 
relation  to  particular  circumstances.  He  well  Tcneiu  that  his 
favorite  form  was  inadmissible,  tmless  as  the  result  of  civil 
war;  and  I  suspect  that  his  belief  in  that  which  lie  called  an 
approaching  crisis  arose  from  a  conviction  that  the  kind  of 
govern7nent  most  suitable,  in  his  opinion,  to  this  extensive 
country  could  be  established  in  no  other  way.  *  *  * 
General  Hamilton  hated  republican  government  because  he 
confounded  it  with  democratical  government,  and  he  detested 
the  latter  because  he  believed  it  must  end  in  despotism,  and 
be,  in  the  tneantime,  destructive  to  public  morality.  He  be- 
lieved that  our  administration  would  be  enfeebled  progres- 
sively at  every  new  election,  and  become  at  last  contemptible.'''' 

The  Revolution  brought  Marshall  in  contact  Avith  Hamil- 
ton, then  on  Washington's  staff,  and  he  became  so  impressed 
with  his  learning  and  genius  that  he  never  afterwards  freed 
himself  from  their  influence.  At  a  later  period,  he  became 
a  follower  of  this  great  leader,  but,  like  the  Tanevs,  and 
that  distinguished  class  of  Southern  Federalists  to  whom 
Walcott  refers,  was  much  more  moderate. 

The  fatigues  of  the  camp,  and  the  grave  responsibilities 
which  rested  upon  him  during  the  war  and  his  first  adminis- 
tration, had  their  efiect  even  upon  the  powerful  frame  of 
Washington  ;  and  towards  the  close  of  his  last  administra- 
tion his  energies  became  relaxed,  and  his  memory,  never 
good,  seriously  impaired. 

Jefferson  and  Hamilton  were  pitted  against  each  other 
during  the  first  administration  of  Washington.  On  Decem- 
ber 31,  1793,  finding  his  situation  unpleasant  and  his  influ- 
ence overweighted  by  that  of  Hamilton  and  circumstances, 
Jefferson  resigned  ;  policy  and  the  pressure  of  public  opin- 
ion compelled  Hamilton  to  follow  him  about  a  year  later ; 
and  Randolph,  who  took  the  place  of  Jefferson,  was  driven, 


382  DARTMOUTH  COLLEGE  CAUSES. 

by  an  enforced  resignation,  from  the  cabinet  in  disgrace. 
Washington  tried  in  vain  to  fill  the  vacant  places  with  men 
fitted  for  them,  but  such  would  not  accept,  and  he  was  com- 
pelled to  select  from  an  inferior  class.  Three  out  of  the 
four  belonged  to  the  Hamiltonian  wing  of  the  Federal  party. 
These  men  have  made  their  own  record  in  their  private  cor- 
respondence. They  fastened  themselves  like  leeches  on 
John  Adams.  Under  both  administrations  they  took  their 
inspiration  and  guidance  from  Hamilton.  They  were  the 
creatures  through  whom  he  moulded  the  policy  of  the  gov- 
ernment. By  his  election,  Adams  became  the  nominal, 
while  Hamilton  remained  the  real,  head  of  his  party.  The 
difierence  between  these  two  was  almost  as  marked  as  that 
betAveen  Adams  and  Jefferson  after  the  French  Revolution. 
They  differed  not  only  in  matters  of  detail,  but  as  respects 
first  principles.  Few  men  have  been  so  misrepresented  and 
so  misunderstood  as  Adams.  Pickering,  Wolcott,  and 
McHenry  were  spies  in  his  cabinet,  plotting,  in  the  interest 
of  Hamilton,  to  defeat  all  his  beneficent  purposes  and  to 
destroy  their  official  head  ;  and  the  managing  spirits  in  the 
Senate,  under  the  same  control,  were  but  little  better. 
Together,  they  made  him  responsible  for  measures  which  he 
never  originated,  and  to  which  he  was  at  heart  opposed. 
Such  a  state  of  things  could  not  last.  The  moderate  Fed- 
eralists of  the  South  and  East,  under  the  lead  of  Marshall 
and  Dexter,  rallied  to  the  support  of  Adams.  Pickering 
refused  to  resign,  and  on  June  12,  1800,  Adams  removed 
him  and  put  Marshall  in  his  place. 

The  presidential  campaign  came  on,  with  Hamilton  still 
plotting  the  defeat  of  Adams.  The  Union  became  an  ocean 
of  political  passion,  without  a  parallel  except  that  which 
preceded  the  late  civil  war.  Partisan  fury  spared  nobody  ; 
life-long  friends  turned  away  from  each  other  as  they  met ; 
the  furnaces  of  defamation,  seventy-and-seven  times  heated, 
flamed  incessantly  ;  and  more  than  the  seven  vials  of  vituper- 
ation were  poured  out  upon  the  devoted  heads  of  Jefferson, 


PRESIDENTIAL    CONTEST    IN    1801.  383 

Adams,  and  their  respective  adherents .  We  can  realize 
how  such  passions  darken  the  understanding  and  harden  the 
hearts  of  men,  when  we  know  that  Jolm  Marshall,  who  so 
seldom  spoke  ill  of  any  one,  put  his  preference  for  Burr 
upon  the  ground  that  the  morals  and  principles  of  even 
Aaron  Burr  were  purer  than  those  of  Thomas  Jefferson. 
The  election  went  to  the  House  of  Representatives.  There 
were  sixteen  States.  Jefferson  controlled  eight,  the  Federal- 
ists six,  and  tied  the  other  two. 

From  February  11  to  17, 1801,  all  business  was  paralyzed, 
and,  in  the  madness  of  the  hour,  the  most  thoughtful  and 
considerate  men  feared  that  the  day  of  doom  for  the  union 
of  these  States  was  at  hand.  More  than  three-fourths  of 
the  Federalists  in  both  houses  of  Congress  lost  their  heads  ; 
passion  took  the  place  of  judgment.  Their  trusted  leaders, 
Hamilton  and  Morris,  lost  all  control  over  them  ;  against 
their  advice,  they  voted  steadily  for  Burr  ;  they  determined 
to  elect  him  if  they  could,  and,  if  they  failed  in  that,  to  put 
the  presidency  into  "  commission,"  as  the  British  some- 
times do  the  *' great  seal,"  bypassing  an  act  vesting  its 
powers  in  Jay,  Marshall,  or  some  person  to  be  elected  by 
them  president  of  the  Senate.  When  it  became  reasonabl}'" 
certain  that  Burr  could  not  be  elected,  Jefferson  sought  an 
interview  with  Adams,  for  the  purpose  of  inducing  him  to 
arrest  the  other  desperate  measures.  We  know  what  that 
interview  was,  and  the  result  of  it.  Jefferson  was  told  upon 
what  terms  he  could  have  the  presidency ;  he  refused  to 
purchase  it  by  capitulation.  There  was  but  one  step  more 
for  the  Republican  leaders  to  take,  and  they  acted  with 
promptness  and  decision.  They  controlled  important  States, 
and  resolved  to  prevent  what  the}^  regarded  as  usurpation 
by  a  resort  to  arms.  This  shook  a  few  of  the  more  moder- 
ate men.  The  probabilities  are  that  Jefferson  never  would 
have  been  president  but  for  Hamilton,  who  had  sought  to 
make  Pinckney  president  over  Adams  by  a  species  of 
treason  to  the  head  of  the  ticket,  and  then,  to  defeat  Burr, 


384  DARTMOUTH  COLLEGE  CAUSES. 

threw  the  positive  weight  of  his  great  influence  with  certain 
members  in  favor  of  Jefferson.  But  even  he  was  unable  to 
secure  the  cooperation  of  Marshall. 

Between  Marshall  and  Jefferson,  as  before  stated,  there 
was  a  relentless  personal  and  jDolitical  antagonism,  which  had 
been  growing  for  years,  and  which  intensified  as  time  rolled 
on,  and  colored  every  thought  and  act  of  each  in  relation  to 
the  other.  The  root  of  the  political  antipathy  it  is  easy  to 
discover,  but  the  source  of  the  personal  hatred  is  unknown. 
There  are  few  sadder  spectacles  than  that  of  Jefferson  at 
eighty-one,  after  his  cordial  reconciliation  with  Adams,  and 
when  he  had  forgiven  every  other  enemy,  replying  to  Mar- 
shall's note:  "And  even  Judge  Marshall  makes  history 
descend  from  its  dignity,  and  the  ermine  from  its  sanctity, 
to  exaggerate,  to  record,  and  to  sanction  this  forgery;" 
unless  it  be  that  of  the  aged  chief  justice,  eight  years  later, 
in  assumed  self-justification,  firing  a  parting  volley  at  the 
ashes  of  his  dead  antagonist. 

In  some  respects  these  men  were  alike.  They  were  of 
Welsh  extraction,  Virginians,  men  of  eminent  talents  and 
strong  convictions,  simple  and  unaffected,  and  possessed  of 
the  most  cordial  social  natures.  Neither  was  given  to 
enduring  hatred.  Jefferson  forgave  all  but  Marshall ;  Mar- 
shall spared  the  world  his  enmity,  and  lavished  it  upon 
Jefferson. 

Late  in  1800,  Ellsworth,  then  in  England,  resigned,  and 
Jay,  who  had  once  resigned  the  position  of  chief  justice  for 
a  foreign  mission,  was  appointed  and  confirmed  in  his  place. 
Adams  personally  pressed  him  to  accept,  but  he  per- 
emptorily declined.  The  "Ultra-Federalists"  strenuously 
insisted  that  the  place  should  be  given  to  Justice  Paterson  ; 
but  Adams,  partly  from  a  dislike  for  that  wing  of  his  party, 
and  partly  because  he  desired  to  avoid  wounding  the  feelings 
of  his  old  friend  Gushing,  the  senior  judge,  and  probably 
because  of  his  partiality  for  Marshall,  who  had  rendered  him 
such  signal  services  in  the  case  of  Nash  or  Robbins,  as  well 


SUPREME    COURT ]VL\RSHALL'S    APPOINTMENT.  385 

as  in  the  cabinet,  refused  to  make  the  desired  appointment, 
and  nominated  the  latter,  who  promptly  accepted  the  posi- 
tion. He  had  abundant  reasons  therefor.  He  probably 
never  held  an  office  that  harmonized  with  his  tastes  and  dip- 
lomatic nature  except  that  of  secretary  of  state.  He  cared 
little  for  the  chief  justiceship  itself,  less  for  the  honor, 
nothing  for  the  salary.  But  the  terms  of  the  courts  were 
so  arranged,  and  the  condition  of  the  dockets  such,  that 
the  position  gave  him  what  he  desired,  —  an  opportunity  to 
remain  at  home,  at  his  leisure.  Pre^aous  to  his  accession 
to  the  bench,  not  only  the  jurisdiction  of  the  Supreme  Court 
was  limited,  but  also  the  number  of  causes  upon  its  dockets. 
This  tribunal  had  been  in  successful  operation,  in  general 
mth  a  retinue  of  six  judges,  for  eleven  years,  and  had,  so 
far  as  the  reports  show,  including  a  variety  of  motions  and 
matters  of  practice,  decided  sixty-four  causes,  an  average 
of  about  six  annually ;  and  less  than  ten  of  these  causes 
were  of  special  importance.  The  position  appealed  to  Mar- 
shall's love  of  power,  and  enabled  him  to  keep  watch  and 
ward  over  Jefferson. 

The  appointment  at  first  gave  great  dissatisfaction.  The 
Republicans  complained  that  Adams,  because  of  his  own 
personal  hostility,  had  put  the  strongest  opponent  of  their 
chief  in  Virginia  as  a  check  over  him.  The  dominant  fac- 
tions of  the  Federal  party  treated  the  nomination  of  Jay  as 
a  farce,  and  complained  that  Adams  had  disregarded  the 
claims  of  Paterson  in  order  to  reward  *'  the  favorite,"  who 
held  views  in  relation  to  party  policy  and  the  construction 
of  the  Constitution  more  liberal  than  their  own. 

Wolcott,  in  his  letter  to  Fisher  Ames,  states  with  pre- 
cision what  they  thought  of  Marshall  and  his  views  :  "  He 
is,  doubtless,  a  man  of  virtue  and  distinguished  talents,  hut 
he  loill  thinJc  much  of  the  State  of  Virginia,  and  is  too 
much  disposed  to  govern  the  world  according  to  the  rules  of 
logic.     He  will  read  and  expound  the  Constitution  as  if  it 


386  DARTMOUTH    COLLEGE    CAUSES. 

loere  a  penal  statute,  and  ivill  sometimes  he  embarrassed  with 
doubts,  of  lohich  his  friends  ivill  not  perceive  the  impor- 
tance.^^ 

With  occasional  fluctuations  like  that  from  Gibbons  v. 
Ogden  (9  Wheat.  1),  in  which,  contrary  to  his  prior  convic- 
tions, he  absorbed  and  afterwards  reiterated  the  argument 
of  Webster,  to  Wilson  v.  Blackbird  Creek  Company  (2  Pet. 
245),  in  which  the  reasoning  and  conclusion  were  his  own, 
he  gradually  changed  his  meridian  toward  that  of  Jay. 

The  extent  of  the  business  of  the  Supreme  Court  during 
the  time  Marshall  presided  over  it  has  been  much  exagger- 
ated. Less  than  thirteen  hundred  cases  were  decided  by  it, 
and,  in  those,  Marshall  delivered  about  five  hundred  opin- 
ions, or,  on  an  average,  about  fifteen  a  year.  During  the 
first  two  years  after  he  came  to  the  bench,  but  five  causes 
were  decided,  in  four  of  which  he  delivered  the  opinion. 
His  first  term  lasted  five  days.  The  average  number  of 
causes  decided  per  year  was  less  than  forty.  But  a  few 
years  ago,  the  Supreme  Court  of  Pennsylvania,  under  Chief 
Justice  Agnew,  held  a  term  of  seven  weeks,  and  in  that 
time  disposed  of  four  hundred  and  twenty-five  out  of  the 
four  hundred  ond  fifty  cases  on  his  docket.  The  contrast  is 
apparent. 

It  is  true  that  some  of  the  decisions  of  the  Federal 
Supreme  Court  were  of  transcendant  importance,  but  the 
mass  of  them  were  of  no  greater  consequence  than  those 
which  came  before  the  Suj^reme  Courts  of  the  several  States. 

In  December,  1801,  the  famous  case  of  Marbury  v.  Madi- 
son came  legitimately  before  the  court.  The  facts  were  few 
and  simple. 

The  last  part  of  the  last  session  under  Adams  was  spent 
by  him  and  his  cabinet  in  making  appointments  which  should 
properly  have  gone  over  to  the  incoming  administration. 
The  reason  assigned  by  Adams  for  this  step  was,  that  he 
regarded  the  power  lodged  in  his  hands  as  a  great  trust, 


LAST    DAYS    OF    ADAMS's    ADMINISTllATION.  387 

which  it  was  his  duty  to  exercise  for  the  good  of  the  Union  ; 
that  his  ftiith  had  been  shaken  in  the  principles  of  Jefferson, 
and  particularly  those  relating  to  the  judiciary  ;  that  if  he 
did  not  fill  the  positions,  and  thus  defeat  the  purposes  of 
Jefferson,  the  latter  would  obtain  control  over  the  courts  by 
filling  them  from  the  ranks  of  his  political  friends  who 
shared  his  views,  and  thus  endanger  the  government.  As 
Jefferson  phrased  it :  "  The  last  day  of  his  [Adams's]  politi- 
cal power,  the  last  hours,  and  even  beyond  the  midnight, 
were  employed  in  filling  all  offices,  and  especially  permanent 
ones,  with  the  bitterest  Federalists,  and  providing  for  me 
the  alternative,  either  to  execute  the  government  by  my 
enemies,  whose  study  it  would  be  to  thwart  and  defeat  all 
my  measures,  or  to  incur  the  odium  of  such  numerous 
removals  from  office  as  might  bear  me  down."  Commis- 
sions were  sent  to  fill  vacancies  where  no  vacancies  could 
exist,  unless  created  by  the  appointee  vacating  one  office  by 
accepting  another ;  others  were  sent  through  the  mail  to 
marshals,  etc.  Adams  had  signed  the  commissions  ot 
William  Marbury,  Dennis  Ramsay,  Robert  T.  Hooe,  and 
William  Harper,  as  justices  of  the  peace  for  the  District  of 
Columbia ;  the  secretary  of  state  had  affixed  to  them  the 
seal  of  the  United  States  in  due  form,  but  they  had  never 
been  delivered,  Adams  having  left  before  the  morning  liixht 
of  the  day  on  which  his  successor  was  inaugurated.  They 
were  found  by  Jefferson  upon  the  table  of  the  secretary,  and 
he  forbade  their  delivery. 

Madison  did  not  assume  the  office  of  secretary  of  state 
for  several  weeks.  In  the  meantime,  the  attorney-general, 
Levi  Lincoln,  whose  judicial  sandals  were  afterwards  taken 
by  Story,  was  the  acting  secretary  of  state,  and  was  cogni- 
zant of  the  facts.  Lee,  the  attorney-general  under  Adams, 
moved  in  the  Supreme  Court,  in  each  case,  for  a  rule  on 
Madison  to  show  cause  why  a  mandamus  should  not  issue, 
commanding  him   to  deliver   the  respective   commissions. 


388  DARTMOUTH  COLLEGE  CAUSES. 

Lincoln  and  other  witnesses  were  examined,  in  the  presence 
of  the  court,  upon  written  interrogatories.  He  stated 
that  he  was  acting  secretary  of  state  when  the  transaction 
happened  ;  that  he  did  not  know  that  the  commissions  ever 
came  to  the  possession  of  Mr.  Madison,  or  that  they  were 
in  the  office  when  Madison  took  possession  of  it ;  he  refused 
to  state  what  had  become  of  them,  the  court  saying  if  they 
never  came  to  the  possession  of  Mr.  Madison  it  was  imma- 
terial to  the  present  cause  what  had  been  done  with  them 
by  others.  The  rule  issued ;  the  secretary  of  state  was 
silent,  but  the  cause  was  elaborately  argued  in  behalf  of  the 
petitioners  upon  the  motion  for  a  peremptory  writ.  At  the 
February  term ,  1803,  Judge  Marshall  delivered  an  opinion 
covering  nearly  twenty-seven  pages  in  the  printed  volume. 
This  was  the  first  of  that  line  of  remarkable  constitutional 
opinions  upon  which  the  reputation  of  Marshall,  as  a  jurist, 
must  mainly  rest.  The  issue,  in  a  legal  sense,  was  exceed- 
ingly narrow.  The  vital  and  decisive  question  which  con- 
fronted the  petitioners  at  the  very  threshold  of  their  case 
was,  whether  the  court  had  jurisdiction  ;  and  this  depended 
upon  another,  whether  Congress  could  annul  the  Constitu- 
tion, or  authorize  or  compel  the  court  to  disregard  its  pro- 
visions. This  decision  has  often  been  treated  as  though 
Marshall  had  discovered  some  new  principle,  as  Newton  did 
the  law  of  gravitation.  The  question  was  neither  new  nor 
difficult,  nor  did  Marshall  so  regard  it.  There  was  nothing 
new  in  his  reasoning  upon  that  point.  He  simply  reiterated 
what  had  been  previously  said  by  Hamilton,  Wilson,  and  by 
many  other  eminent  statesmen  and  jurists.  In  his  opinion 
he  says  :  "  The  question,  whether  an  act  repugnant  to  the 
Constitution  can  become  the  law  of  the  land,  is  a  question 
deeply  interesting  to  the  United  States,  but,  happily^  not  of 
an  intricacy  pi'oportioned  to  its  interest.  It  seems  only 
necessary  to  recognize  certain  pi'inciples,  supposed  to  have 
been  long   and   well   established,    to   decide   it."      And  in 


MARBURY   V.  MADISON.  389 

Cohens  v.  Virginia  he  said:  "In  the  case  of  Marbury  v. 
Madison,  the  single  question  before  the  court,  so  far  as  that 
case  can  be  applied  to  this,  was,  whether  the  legislature 
could  give  this  court  original  jurisdiction  in  a  case  in  which 
the  Constitution  had  clearly  not  given  it,  and  in  which  no 
doubt  respecting  the  construction  of  the  article  could  pos- 
sibly be  raised." 


CHAPTEK    XV.  —  Continued. 

In  the  dark  days  which  preceded  the  Revolution,  the  people 
of  the  Colonies  had  been  thoroughly  indoctrinated  with  the 
idea  that  the  acts  of  Parliament  of  which  they  complained 
were  unconstitutional,  and  therefore  void,  and  that,  in  con- 
sequence, they  were  justified  in  resisting  their  enforcement. 
Judge  Wilson,  in  a  famous  pamphlet,  had  urged  with  great 
ingenuity  and  force  that  it  was  the  right  and  the  duty  of 
the  courts  to  set  aside  such  acts.  This  view  was  supported 
by  many  of  the  most  eminent  politicians,  statesmen,  and 
jurists  of  that  day.  This  doctrine  had  sunk  deep  into  the 
popular  mnid. 

The  judges  in  Rhode  Island  had  set  aside  an  act  of  the 
Legislature  as  unconstitutional.  The  same  is  true  of  New 
Jersey.  In  1788  and  1793,  the  Court  of  Appeals  in  Virginia 
had  done  the  same  thing.  The  power  of  the  highest  court 
to  set  aside  such  acts  was  recognized  in  New  Hampshire 
soon  after  the  adoption  of  the  written  Constitution  of  1784. 
From  1790  to  1799,  they  were  repeatedly  declared  void  by 
the  highest  court,  and  sometimes  by  inferior  tribunals. 

Jeremiah  Mason  began  practice  in  New  Hampshire  in 
1791.  With  characteristic  humor  he  thus  describes  the  man- 
ner in  which  two  statutes  of  the  State  were  set  aside,  one 
by  a  justice  of  the  peace  and  the  other  "by  the  inferior 
Court  of  Common  Pleas  :  "  — 

"  At  this  time  the  Legislature  was  in  the  practice  of  frequently 
interfering  with  the  business  of  the  courts  by  granting  new  trials 
and  prescribing  special  rules  for  the  trial  of  a  particular  action. 
A  ludicrous  instance  of  the  exercise  of  this  sovereign  power 
occurred  early  in  my  practice  at  "Westmoreland.  A  poor  man  was 
accused   of  having   stolen  two   small   pigs   of  a   neighbor,    who 

(890) 


JEREMIAH    MASON THE    PIG    CASE.  391 

applied  at  m}'-  office  for  a  prosecution  for  larceny.  Doubting 
whether  the  taking  of  the  pigs,  under  tlie  circumstances,  amounted 
to  stealing,  one  of  my  students,  to  whom  in  my  absence  the  appli- 
cation was  made,  advised  to  an  action  of  trover ;  this  was  com- 
menced, in  which  the  two  pigs  were  alleged  to  be  of  the  value  of 
one  dollar.  The  deputy  sheriff,  in  serving  the  writ,  finding 
nobody  at  the  defendant's  cottage,  left  the  summons  safely  placed 
between  the  door  and  sill,  which  the  plaintiff,  living  near,  saw 
done.  As  soon  as  the  sheriff  was  out  of  sight,  the  plaintiff  went 
and  stole  away  the  summons.  Unluckily  for  him,  this  was  seen 
b}"^  a  person  at  a  distance.  The  action  was,  of  course,  defaulted, 
and  the  first  news  the  defendant  had  of  it  was  an  execution.  He 
made  a  great  outcry,  and  soon  ascertained  that  the  summons  had 
been  stolen.  He  came  to  me  with  his  complaint,  and  I  offered 
him  to  have  the  judgment  and  execution  cancelled,  and  to  let  him 
have  a  trial  for  the  pigs.  This  he  rejected  with  contempt,  and 
forthwith  applied  to  the  Legislature,  then  in  session,  for  a  remedy 
for  his  grievance.  The  Legislature,  without  notice  to  the  opposite 
party,  immediately  passed  an  act  directing  the  magistrate  to  cite 
the  plaintiff  before  him,  set  aside  the  default  and  try  the  action, 
and  to  allow  to  either  party  an  appeal.  Tlie  plaintiff  was  cited, 
and  I  appeared  for  him,  and  denied  the  power  of  the  Legislature 
to  pass  the  act,  and  went  into  an  argument  on  the  constitutional 
restraints  of  the  legislative  power.  This  was  answered  by  the 
opposing  counsel  by  portraying  the  audaciousness  of  the  attempt 
of  an  inferior  magistrate  to  question  the  power  of  the  supreme 
Legislature.  But  the  justice,  having  been  an  officer  in  the  Revolu- 
tionai-y  army,  and  being  desirous  of  sustaining  his  reputation  for 
courage,  which  stood  high,  promptly  pronounced  the  act  utterly 
void,  and  refused  to  obey  it.  An  appeal  was  claimed  and  disal- 
lowed, the  justice  saying  that,  as  the  whole  proceeding  was  void, 
he  had  no  rightful  power  to  record  a  judgment  or  grant  an  appeal. 
Thus  ended  the  first  act  of  the  farcical  drama.  The  defendant, 
nothing  discouraged  by  his  ill-luck,  obtained  from  the  sovereign 
Legislature,  at  its  next  session,  an  act  directing  the  Court  of  Com- 
mon Pleas  to  try  the  defaulted  action.  There  the  parties  again 
met,  and,  after  due  argumentation  and  deliberation  had,  that  court 
determined  they  would  do  nothing  with  it.  By  this  time  the  pig 
action  had  gained  extensive  notoriety,  and  tended  much  to  bring 
such  special  acts  of  the  Legislature,  interfering  with  the  regular 


392  DARTMOUTH  COLLEGE  CAUSES. 

course  of  the  courts  of  law,  into  ridicule  and  deserved  contempt." 
(Mason's  Mem.  26,  27.) 

Whether  the  Constitution  conferred  upon  the  courts  the 
power  to  set  aside,  as  unconstitutional,  the  laws  passed  in 
violation  of  its  provisions,  was  considered  by  the  Federal 
Convention.  There  were  dissenting  voices,  it  is  true,  but 
the  most  eminent  of  its  members  treated  the  power  as 
unquestionable.  Hamilton  demonstrated  the  existence, 
necessity,  and  propriety  of  this  power  in  "  The  Federalist," 
and  particularly  in  No.  78,  published  June  17  and  20, 1788. 
Judge  Wilson  did  the  same.  (1  Wilson's  Works,  460, 
463.)  Judges  of  the  Supreme  Court,  sitting  at  the  circuit, 
confirmed  this  view ;  and  some  of  them  had  reiterated  it  in 
their  opinions,  delivered  from  the  Supreme  Bench,  without, 
so  far  as  we  now  recollect,  a  single  dissenting  voice,  though 
there  were  undoubtedly  able  men  who  thought  otherwise. 

It  is  no  wonder,  then,  that  Marshall  regarded  the  point 
clear  and  unquestionable,  or  that  the  court  decided  it  had 
no  jurisdiction,  and  ordered  the  rule  discharged. 

The  most  extraordinary  features  of  Marbury  v.  Madison 
are,  the  extra-judicial  character  of  nearly  four-fifths  of  the 
opinion,  and  the  striking  similarity  in  the  conduct  of  its 
author  and  that  of  Story  in  Ex  parte  Christy,  to  which  we 
have  already  referred.  In  both  cases,  the  personal  feelings 
of  the  judges  were  strongly  enlisted ;  in  both,  it  was  self- 
evident  that  the  court  had  no  jurisdiction  ;  in  both,  on  that 
question,  the  opinions  were  brief;  and  in  both  they  went 
out  of  their  way,  and  attempted  to  decide  what  the  law  was 
on  a  variety  of  the  most  important  questions,  not  before  the 
court.  Both  had  a  purpose  in  adopting  this  censurable 
course,  and  their  eminence  cannot  make  wrong  right. 

Marshall's  nature  was  robust;  he  compelled  argument, 
listened  patiently,  and  weighed  with  care,  but  was  never 
given  to  sentimental  delicacy  in  the  discharge  of  his  judicial 
duties.  As  we  have  already  seen,  he  had  participated  in  the 
decision — whether  at  the  summons  of  Story  or  of  his  own 


REAL    ISSUE    IN    MARBURY    V.  MADISON.  39;^ 

motion  does  not  appear  —  upon  a  most  important  question 
of  constitutional  law,  when  no  cause  was  before  the  court ; 
he  had  failed  to  rebuke  his  great  friend  and  admirer,  Wirt, 
who  sought  his  opinion  before  he  instituted  his  suit  in  favor 
of  the  Cherokee  Nation.  Wirt,  it  is  true,  had  taken  the 
opinion  of  such  jurists  as  Chancellor  Kent,  Webster,  Spencer, 
and  other  lesser  luminaries,  who  were  supposed  to  know  a 
little  something  of  the  law  ;  but  it  was,  of  course,  infinitely 
more  important  for  him  to  know  beforehand  the  opinion  of 
the  chief  justice,  and  especially  when  it  was  almost  certain 
that  his  opinion  upon  such  a  question  would  be  adopted  by 
a  majority  of  the  court.  It  would  simplify  practice  much, 
and  lessen  the  labors  of  the  profession,  if  all  lawyers  could  in 
this  way  know  before  they  instituted  their  causes  how  the 
court  would  decide  them.  Lord  Mansfield,  whom  Marshall 
admired,  had  strict  notions  upon  the  subject.  In  Rex 
V.  Earl  Ferrers  (1  Burr.  633),  when  the  earl  came  to 
Westminster  Hall  he  sent  a  message  to  the  chief  justice, 
desiring  to  speak  with  him  ;  but  Lord  Mansfield  bid  the  mes- 
senger tell  his  lordship,  "  that  when  an  Affair  was  depend- 
ing before  the  Court,  he  could  not  speak  with  any  Body 
about  it,  but  in  Court.''' 

In  Marbury  v.  Madison,  Marshall  treats  the  case  as  one  of 
"peculiar  delicacy,"  and  says,  "  At  first  view,"  it  might 
' '  be  considered  by  so7ne  as  an  attempt  to  intrude  into  the 
cabinet,  and  to  intermeddle  with  the  prerogatives  of  the 
executive ;  ' '  and  in  this  he  was  clearly  right.  In  this 
case  he  was  reviewing,  as  a  judge,  the  legal  efiect  of  his  own 
acts,  and  what  he  had  omitted  to  do  when  a  member  of  the 
cabinet.  It  puts  any  judge  in  a  delicate  position  when  he 
attempts  to  decide  questions  not  before  him,  and  especially 
where  the  personal  relations  were  of  such  an  extraordinary 
and  peculiar  character  as  in  this  case. 

Marbury  and  Madison  were  the  John  Doe  and  Richard 
Roe  of  the  ejectment ;  the  real  issue  was  between  John 
Marshall  and  Thomas  Jefferson,  —  a  trial   of  strength  in 


394  DARTMOUTH  COLLEGE  CAUSES. 

their  new  positions.  The  bulk  of  the  opinion  was  a  dis- 
course upon  government,  addressed  by  one  Virginia  politi- 
cian to  another ;  a  lecture  to  the  new  president  upon  the 
duties  of  his  office  ;  a  horn-book  for  the  guidance  of  the 
inferior  courts  in  compelling  the  president,  through  his 
"  head  clerk,"  to  obey  their  order,  when  an  application  for 
that  purpose  should  be  made  to  them.  In  Cohens  v.  Vir- 
ginia, Judge  Marshall  repudiated  a  portion  of  what  he 
termed  the  "  dicta  "  in  this  opinion. 

The  death  of  Hamilton,  in  1804,  left  Marshall  the  only 
great  leader  spared  from  the  shipwreck  which  engulfed  his 
political  associates,  and  he  drifted,  though  at  first  slowly, 
further  into  the  Hamiltonian  current.  In  later  life,  after 
he  came  under  the  combined  influence  of  Pinkney,  Story, 
and  Webster,  these  views  of  Marshall  were  much  intensified. 
We  have  before  adverted  to  the  close  relations  which  existed 
between  Story  and  Marshall,  and  the  reciprocal  influence 
they  had  over  each  other ;  that  of  Webster  assumed  a 
diflerent  form,  and  operated  through  another  channel.  Mar- 
shall did  not  even  know  Webster  till  after  he  read  his 
speech  of  June  10,  1813.  He  regarded  him  as  a  statesman 
and  a  very  able  man,  but  never,  even  after  the  struggle 
between  these  two  Titans  in  Bullard  v.  Bell,  as  the  equal 
of  Pinkney,  whom  he  always  declared  "  the  greatest  man 
and  the  most  luminous  reasoner  "  he  had  ever  seen  in  a 
court  of  justice.  Webster  won  upon  him  by  his  ponderous 
power,  through  Story,  and  by  his  course  in  relation  to  the 
court.  When  the  attempt  was  made,  in  1826,  to  repeat 
what  transpired  under  Adams  when  the  judiciary  bill  was 
jDassed  and  the  appointments  made,  Webster,  in  his  confi- 
dential note  to  Mason,  of  May  2,  1826,  says  :  "  In  looking 
out  for  men  to  fill  these  places,  a  very  honest  and  anxious 
desire  is  felt,  I  believe,  to  find  men  who  concur  in  the 
leading  decisions  of  the  Supreme  Court.  If  any  error  be 
committed  on  that  point  it  will  be  through  misinformation." 
(Mason's    Mem.    303.)     This    statement    carries    its  own 


Marshall's  drift  —  the  point  on  the  surface.     395 

comment.  It  is  obvious  what  decisions  Webster  had  in 
mind.  We  know  how  this  sentiment  pervaded  the  bench, 
and  how,  in  consequence,  Duvall  endured  so  much  dis- 
comfort, and  held  his  place,  against  his  own  wishes,  until 
he  ascertained  that  he  could,  in  effect,  name  his  suc- 
cessor. 

It  has  been  suggested  that  Marshall  dissented  from  the 
decision  in  Terrett  v.  Taylor  (9  Cranch,  43).  We  do  not 
so  understand  it. 

Story,  who  of  all  men  was  in  a  situation  to  know  the 
facts,  in  1828,  said:  "Few  decisions  upon  constitutional 
questions  have  been  made  in  which  he  [Marshall]  has  not 
delivered  the  opinion  of  the  court ;  and  in  these  few  the  duty 
devolved  upon  others  to  their  own  regret,  either  because  he 
did  not  sit  in  the  cause,  or  from  motives  of  delicacy  abstained 
from  taking  an  active  part. 

"  If  we  do  not  mistake,  there  is  but  a  single  case  in 
which  his  judgment  is  known  to  have  differed  from  that 
of  the  court  upon  any  point  of  constitutional  law.  That 
case  was  Ogden  v.  Saunders,  decided  at  the  last  term  of  the 
court,  which  involved  the  question  of  the  constitutionality 
of  an  insolvent  law  which  was  passed  antecedently  to  the 
formation  of  a  contract  and  discharged  its  obligation." 

We  may  remark  here,  that  not  long  after  the  decision  in 
Ogden  V.  Saunders,  Mr.  Webster,  in  a  conversation  with 
Mr.  Choate  in  relation  to  that  in  Trustees  v.  Woodward, 
said,  with  his  characteristic  simplicity  and  impressive  force  : 
"There  was  a  point  which  lay  upon  the  surface  of  that 
case,  neither  taken  by  counsel  nor  considered  by  the  court. 
If  it  had  been  properly  presented,  the  decision  would  prob- 
ably have  been  the  other  way."  We  give  the  statement 
as  we  have  it  from  a  member  of  the  profession,  whose 
personal  relations  with  Choate  and  one  of  the  leading 
trustees  were  peculiarly  intimate,  and  to  whom  Choate 
repeated  it. 

Marshall  adhered  to  the  last  to  his  opinion  in  the  College 


396  DARTMOUTH  COLLEGE  CAUSES. 

case.  In  his  letter  to  Story,  of  July  31,  1833,  in  relation  to 
the  case  of  Dr.  Allen  against  the  treasurer  of  Bowdoin  Col- 
lege, which  we  have  considered  in  a  previous  chapter,  he  says  : 
"  I  have  received  the  paper  containing  your  opinion  in  the 
very  important  case  of  Allen  v.  McKean.  It  is  impossible 
a  subject  could  have  been  brought  before  you  on  which  you 
are  more  completely  aufaif.  It  would  seem  as  if  the  State 
Legislatures  (many  of  them  at  least)  have  an  invincible  hos- 
tility to  the  sacredness  of  charters.  From  this  paper  I 
should  conjecture  that  this  case  will  proceed  no  further." 
(2  Life  of  Story,  150.) 

We  have  already  shown  that  when  this  letter  was  written, 
the  great  Bridge  case  had  been  before  the  Supreme  Court 
for  years,  and  that  Stor}''  had  written  out  his  opinion  and 
submitted  it  to  Mason  for  his  inspection  and  revision  nearly 
twenty  months  before. 

We  pass  by  the  chaotic  mass  of  contradictory  opinions  in 
relation  to  the  powers  conferred  by  the  Constitution  over 
admiralty  causes,  etc. 

In  Sturges  v.  Crowninshield,  Marshall  was  compelled  by 
the  necessities  of  his  position,  as  well  as  by  his  natural  con- 
victions, to  adopt  the  middle  ground  between  the  doctrine 
of  Johnson  and  Livingston  on  the  one  hand,  and  Washington 
on  the  other,  in  relation  to  the  power  of  the  States  over 
bankruptcies. 

In  Gibbous  v.  Ogden  he  struck  out  the  key-stone  of  the 
arch  on  which  that  very  able  constitutional  lawyer,  Professor 
Pomeroy,  rests  his  "national"  theory,  by  sa3dng:  "As 
prehminary  to  the  very  able  discussions  of  the  Constitution 
which  we  have  heard  from  the  bar,  and  as  having  some 
influence  on  its  construction,  reference  has  been  made  to 
the  political  situation  of  these  States  anterior  to  its  forma- 
tion. It  has  been  said  that  they  were  sovereign,  were  com- 
pletely independent,  and  were  connected  with  each  other 
only  by  a  league.      T7iis  is  true.'" 

The  doctrine  of  the  majority  of  the  court  in  Ogden  v.  Saun- 


WHAT   ENTERS    tNTO    OBLIGATION    CLAUSE.  397 

ders,  overruling  Marshall,  has  since  been  affirmed  (in  1872), 
in  the  following  emphatic  language  :  * '  The  act  is  not  an 
ex  post  facto  law  only  because  that  phrase,  in  its  legal  sense, 
is  confined  to  crimes  and  their  punishment. 

"  The  Constitution  of  the  United  States  declares  that  no 
State  shall  pass  any  '  law  impairing  the  obligation  of  con- 
tracts.' 

' '  These  propositions  may  be  considered  consequent  axioms 
in  our  jurisprudence  :  — 

"  The  laws  which  exist  at  the  time  and  place  of  the  mak- 
ing of  a  contract,  and  where  it  is  to  be  performed,  enter 
into  and  form  a  part  of  it.  This  embraces  alike  those  which 
affect  its  validity,  construction,  discharge,  and  enforcement. 
*  *  *  The  ideas  of  validity  and  remedy  are  inseparable, 
and  both  are  parts  of  the  obligation  which  is  guaranteed  by 
the  Constitution  against  impairment. 

"  The  obligation  of  a  contract  '  is  the  law  which  binds  the 
parties  to  perform  their  agreement.' 

*'Any  impairment  of  the  obligation  of  a  contract  —  the 
degree  of  impairment  is  immaterial  —  is  within  the  prohibi- 
tion of  the  Constitution,"  (Walker  v.  Whitehead,  16  Wall. 
314.) 

But  unless  some  limitation  is  imposed  upon  the  broad 
terms  used  in  these  two  cases  from  which  wo  have  quoted, 
a  singular  result  might  follow.  The  la'-.v  of  the  place, 
whether  statutory  or  otherwise,  whatever  it  may  be,  by  the 
rule  stated,  enters  into  the  obligation  of  the  contract.  A., 
for  a  pecuniary  consideration,  might  contract  with  B.,  with 
every  possible  formality  of  which  the  legal  mind  could  con- 
ceive, to  murder  C.  By  the  ex^Dress  terms  of  the  contract, 
he  might  be  entitled  to  receive  his  compensation.  He 
might  bring  his  suit,  but  he  could  not  recover,  because  the 
law  of  the  land,  whether  written  or  unwritten,  stepped  in 
at  the  formation  of  the  contract  and  annulled  the  binding 
force  of  its  express  and  positive  terms. 


398  DARTMOUTH  COLLEGE  CAUSES. 

If  the  College  charter  was  a  contract,  it  was  a  British 
contract,  antedating  the  Constitution  itself,  and  every  prin- 
ciple of  British  law  applicable  to  the  subject,  which  existed 
at  the  time,  entered  into  it  or  its  obligation.  If  the  pro- 
viso had  been  wi'itten  into  the  charter  that  Parliament  — 
the  two  legislative  branches  of  the  government  —  might 
alter,  amend,  or  repeal  that  charter  at  their  pleasure,  this 
provision  would  have  had,  to  say  the  least,  as  much  binding 
force  as  any  other  in  the  instrument.  If  such  a  proviso  had 
been  written  in,  in  1769,  would  the  adoption  of  the  obliga- 
tion clause,  in  1788,  have  blotted  it  out  of  the  charter? 
And  yet,  so  far  as  the  law  of  Great  Britain  was  concerned, 
such  a  clause  would  have  been  waste  paper.  The  legal  effect 
of  the  charter  was  precisely  the  same,  whether  this  proviso 
was  inserted  or  omitted.  The  foundation  principle  upon 
which  the  whole  structure  of  English  law  and  government 
rests,  is  thus  forcibly  stated  by  Story :  "  Even  in  England, 
where  the  principles  of  civil  liberty  are  cherished  with 
uncommon  ardor,  and  private  justice  is  administered  with  a 
pure  and  elevated  independence,  the  acts  of  Parliament  are, 
by  the  very  theory  of  the  government,  in  a  legal  sense, 
omnipotent.     They  cannot  be  gainsaid  or  overruled. 

"  They  form  the  law  of  the  land,  which  controls  the  pre- 
rogative, and  even  the  descent,  of  the  crown  itself,  and  may 
take  away  the  life  and  property  of  the  subject  without  trial 
and  without  appeal." 

The  answer,  if  there  be  any,  to  the  supposed  difficulty 
would  seem  to  be  that  such  a  case  or  purpose  never  entered 
the  minds  of  the  framers  of  the  Constitution,  or  of  the 
people  when  they  adopted  it ;  but  Marshall,  in  Trustees  v. 
AVoodward,  concedes  that  this  is  also  true  in  respect  to  the 
doctrine  adopted  by  him,  and  holds  that  it  is  for  those  who 
deny  it,  or  its  application,  to  go  further,  and  show  if  it  had 
been  brought- to  their  attention  they  would  have  rejected  it. 
How,  before  what  tribunal,  and  by  what  evidence,  can  this 


LAWS    OF    GREAT    BRITAIN    AND    THE    CHARTER.  399 

be  shown?  Such  a  rule  makes  a  question  of  constitutional 
law  of  transcenclant  importance  depend  upon  a  Yankee's 
"  guess  "  as  to  what  a  mere  question  of  fact  was. 

But  a  great  change  in  the  current,  prefigured  by  the  revolt 
of  a  majority  of  the  judges,  in  Ogden  v.  Saunders,  from  the 
domination  of  Marshall  and  Story,  was  to  come.  The  deci- 
sions in  the  great  cases  of  the  Mayor,  etc.,  of  New  York  v. 
Miln  (11  Pet.  102),  Briscoe  v.  The  Bank  of  Kentucky  (11 
Pet.  257),  and  Charles  River  Bridge  v.  Warren  Bridge  (11 
Pet.  420),  were  second  in  their  importance  only  to  the 
action  of  the  Federal  Convention  in  creating  the  Constitu- 
tion. They  had  been  argued  with  gi'eat  ability  before  Mar- 
shall, and  had  been  carefully  considered  by  him.  In  his 
opinion,  the  State  laws  in  question  were  in  violation  of  the 
Federal  Constitution,  and  therefore  void.  The  same  causes 
were  reargued  before  his  successor,  and  held  valid. 

The  decision  in  the  case  of  The  Mayor  v.  Miln,  aided  by 
that  in  Wilson  v.  Blackbird  Creek  Company,  smoothed  the 
way  for  that  in  Gilman  v.  Philadelphia  (3  Wall.  713),  in 
which  a  majority  of  the  court  made  a  dissenting  opinion  of 
Taney  the  law,  and  overturned  one  of  the  foundation  prin- 
ciples of  Gibbons  v.  Ogden. 

We  have  already  commented  upon  the  great  departure,  in 
the  case  of  Charles  liiver  Bridge  v.  Warren  Bridge,  from 
the  construction  put  upon  the  ' '  obligation  clause  ' '  in 
Fletcher  V.  Peck  and  the  College  cases. 

In  1835,  the  language  of  the  Constitution  was  precisely 
what  it  was  in  1837  ;  but  as  names  and  forms  cannot  change 
substance,  in  these  two  years  we  lived  under  two  mate- 
rially difierent  constitutions.  These  decisions  in  1837  filled 
Story  with  alarm.  The  truth  is  thus  pithily  stated  by  his 
son  ;  "  The  fact  that,  in  the  only  three  constitutional  ques- 
tions which  came  before  the  court  this  session,  my  father 
found  himself  compelled  to  deliver  dissentient  opinions, 
indicates  very  plainly  that  the  constitutional  views  of  him- 
self and  Marshall  differed  from  those  entertained  by  a  ma- 


400  DARTMOUTH  COLLEGE  CAUSES. 

jority  of  his  present  brethren  upon  the  bench.  *  *  *  My 
father  now  became  convmced  that  a  new  era  had  come, 
and  that  with  the  spirit  which  now  animated  the  court  he 
could  not  hope  to  agree  with  them  upon  constitutional 
points.  His  position  was,  therefore,  rendered  somewhat 
embarrassing,  and  he  was  very  desirous  to  resign  his  office." 
(2  Life  of  Story,  271.) 

Story  himself  says,  in  his  letter  to  Harriet  Martineau,  of 
April  7,  1837  :  "  I  am  the  last  of  the  old  race  of  judges.  I 
stand  their  solitary  representative,  with  a  pained  heart  and  a 
subdued  confidence.  Do  you  remember  the  story  of  the  last 
dinner  of  a  club  who  dined  once  a  year  ?  I  am  in  the  predic- 
ament of  the  last  survivor."      (2  Life  of  Story,  277.) 

Li  his  letter  to  Judge  McLean,  of  May  10,  1837,  Story 
says  :  "  There  will  not,  I  fear,  ever  in  our  day  be  any  case 
in  which  the  law  of  a  State  or  of  Congress  will  be  declared 
unconstitutional ;  for  the  old  constitutional  doctrines  are 
fast  fading  away,  and  a  change  has  come  over  the  public 
mind  from  which  I  augur  little  good.  Indeed,  on  my  return 
home  I  came  to  the  conclusion  to  resign."  ('2  Life  of 
Story,  272.) 

Li  his  letter  of  April  12,  1845,  Story  writes  to  his  old 
fi'iend  Bacon :  "I  have  long  been  convinced  that  the  doc- 
trines and  opinions  of  the  old  court  were  daily  losing  ground, 
and  especially  those  on  great  constitutional  questions.  New 
men  and  new  opinions  have  succeeded.  The  doctrines  of 
the  Constitution,  so  vital  to  the  country,  which  in  former 
times  received  the  support  of  the  whole  court,  no  longer 
maintain  their  ascendancy.  I  am  the  last  member  now 
living  of  the  old  court,  and  I  cannot  consent  to  remain 
where  I  can  no  longer  hope  to  see  those  doctrines  recognized 
and  enforced.  *  *  *  I  am  persuaded  that  by  remaining 
on  the  bench  I  could  accomplish  no  good  either  for  myself  or 
for  my  country."      (2  Life  of  Story,  527,  528.) 

We  have  already  referred  to  Fletcher  v.  Peck.  The 
Legislature  of  Georgia,  in  1795,  claiming  that  the  United 


STORY    AND    THE    COURT NEW    INTERPRETATIONS.       401 

States  had  no  title  to  certain  Western  tribal  lands,  that  they 
were  within  the  boundaries  of  Georgia,  that  Georgia  held 
the  title,  subject  to  the  unextinguished  Indian  title,  author- 
ized the  governor,  by  an  act  for  that  purpose,  to  convey  the 
same  to  James  Gunn  and  others.  The  governor  made  the 
conveyance  in  due  form,  for  a  valuable  consideration.  A 
portion  of  these  lands  was  conveyed  by  the  original  grantees 
to  James  Greenleaf,  and  from  him  through  a  chain  of  con- 
veyances to  the  defendant,  Peck.  All  the  conveyances  after 
that  to  the  original  grantees  were  made  for  valuable  consid- 
erations, without  knowledge  or  notice  on  the  part  of  any 
of  these  vendees  that  the  original  grantees  secured  the  pas- 
sage of  this  act,  as  was  alleged,  by  bribery,  etc.  A  subse- 
quent Legislature,  alleging  this  corruption,  passed  another  act 
rescinding  the  former  one,  annulling  the  deed  to  the  original 
grantees,  and  asserting  the  title  of  the  State  to  the  lands 
it  covered.  Peck  conveyed,  with  covenants,  to  Fletcher. 
After  the  act,  Fletcher  brought  suit  for  covenant  broken. 
This,  like  Sturges  v.  Crowninshield,  was  a  Massachusetts 
case.  In  the  one  the  legislation  of  Georgia,  and  in  the  other 
that  of  New  York,  was  held  invalid.  Whether  Fletcher  v. 
Peck  was  at  the  bottom  a  genuine  case,  or  one  in  which 
important  questions  were  mooted  for  the  purpose  of  further- 
ing in  another  field  the  interests  of  speculators,  may  be 
questioned,  however  legitimate  it  may  have  been  so  far  as 
the  counsel  and  some  of  the  immediate  actors  were  con- 
cerned. This  cause  was  argued  the  last  time  by  Martin  for 
the  plaintiff,  and  Robert  Goodloe  Harper  and  Joseph  kStory 
for  the  defendant.  Few  things  could  be  more  absurd  than  to 
imagine  these  great  lawyers  gravely  arguing  before  such  a 
court  whether  the  solemn  enactment  of  a  great  State  could 
be  set  aside  by  the  finding  of  a  quarter-sessions  judge  or  petit 
juiy  that  its  passage  was  procured  by  '<  undue  influence," 
or  purchase. 

Judge  Marshall  discussed  the  points  raised  by  the  first 
count  last,  and  seems  to  have  held,  — 

26 


402  DARTMOUTH  COLLEGE  CAUSES. 

1.  That  a  State,  unless  restrained  by  its  Constitution,  may 
sell  its  lands. 

2.  There  was  no  such  prohibition  in  the  Constitution  ot 
Georgia. 

3.  That  the  question  as  to  the  title  of  the  United  States 
had  been  settled  by  compact. 

4 .  That  the  reservation ,  ' '  for  the  use  of  the  Indians , "  etc . , 
"  was  a  temporary  arrangement,"  and  did  not  prohibit  the 
State  from  acquiring  or  selling  these  lands. 

5.  That  somehow  the  Indian  title  either  could  or  would 
not  be  legally  invaded. 

6.  That  a  recovery  might  be  had,  notwithstanding  the 
peculiar  language  of  the  covenants  and  the  state  of  the 
Indian  title. 

7.  That,  as  between  the  State  and  innocent  purchasers,  the 
court  would  not  enter  into  an  investigation  of  the  question 
as  to  whether  the  original  grantees  obtained  their  title  by 
corrupting  the  Legislature  or  not. 

The  fourth  covenant  was,  that  the  title  to  the  premises 
had  been  in  no  way  constitutionally  or  legally  impaired 
by  any  subsequent  act  of  any  subsequent  Legislature  of 
Georgia. 

The  third  count  based  upon  this  covenant  set  forth  the 
corruption  of  the  Legislature,  the  annulling  act  at  length, 
and  averred  that  by  reason  of  this  act  the  title  of  Peck  was 
constitutionally  and  legally  impaired.  The  defendant  again 
pleaded  that  the  first  purchaser  under  the  original  grantees, 
and  all  subsequent  holders  of  the  property,  including  him- 
self, were  purchasers  without  notice.  There  was  a  demurrer 
and  joinder.  Eight  pages  of  Marshall's  opinion  are  devoted 
to  the  discussion  of  the  questions  thus  raised. 

It  would  seem  that  five,  at  least,  of  the  grounds  upon 
which  Marshall  put  the  decision  originated,  not  with  him, 
but  the  counsel.  The  argument  of  the  counsel  for  the 
defence  upon  two  of  these  points  is  thus  reported  by  Judge 
Cranch  (p.  123)  :   "The  Legislature  of  Georgia  could  not 


POINTS  APPARENTLY  DECIDED  IN  FLETCHER  V,  PECK.      403 

revoke  a  grant  once  executed.  It  bad  no  right  to  declare 
the  law  void ;  that  is  the  exercise  of  a  judicial,  not  a  legis- 
lative, function.  It  is  the  province  of  the  judiciary  to  say 
what  the  law  is,  or  what  it  loas.  The  Legislature  can  only 
say  what  it  shall  he. 

"  The  Legislature  was  forbidden  by  the  Constitution  of 
the  United  States  to  pass  any  law  impairing  the  obligation 
of  contracts.  A  grant  is  a  contract  executed,  and  it  creates 
also  an  executory  contract,  which  is,  that  the  grantee  shall 
continue  to  enjoy  the  thing  granted,  according  to  the  terras 
of  the  grant." 

The  opinion  of  Marshall  certainly  adds  nothing  to  the 
clearness  and  force  of  these  jDositions.  But  he  apparently 
originated  and  coupled  with  them  the  points  in  relation  to 
ex  post  facto  laws,  bills  of  attainder,  and  estoppel. 

Fletcher  v.  Peck  has  been  commonly  treated  as  if  he  put 
the  judgment  distinctly  upon  the  ground  that  the  annulling 
act  impaired  the  obligation  of  contracts.  Few  things  could 
be  farther  from  the  truth.  In  summing  up,  he  puts  the 
judgment  distinctly  upon  the  ground  "  that,  in  this  case, 
the  estate  having  passed  into  the  hands  of  a  purchaser  for  a 
valuable  consideration  without  notice,  the  State  of  Georgia 
was  restrained,  either  by  general  principles  which  are  com- 
mon to  our  free  institutions,  or  by  the  particular  provisions 
of  the  Constitution  of  the  United  States,  from  passing  a 
law  whereby  the  estate  of  the  plaintiff  in  the  premises  so 
purchased  could  be  constitutionally  and  legally  impaired 
and  rendered  null  and  void."     The  italics  are  ours. 

This  is  but  little,  if  anything,  more  than  was  said  by  the 
same  judge  when  ' '  delivering  the  opinion  of  the  court ' '  in 
Insurance  Company  v.  Canter  (1  Pet.  511).  In  that  case, 
after  discussing  whether  the  power  to  govern  was  derived 
from  the  right  to  acquire  territory  or  from  a  specific  clause 
in  the  Constitution,  he  put  the  judgment  upon  the  gi'ound 
that,  "  whichever  may  be  the  source  whence  the  power  is 
derived,  the  possession  of  it  is  unquestioned."     In  subse- 


404  DARTMOUTH  COLLEGE  CAUSES. 

quent  decisions  by  the  same  court,  this  power  has  been 
placed  first  on  one  of  those  grounds  and  then  on  the 
other.  The  first  proposition  stated  by  Marshall  as  the 
foundation  of  the  judgment  in  Fletcher  v.  Peck  was  the 
one,  as  we  have  seen,  supported  at  length  by  Mason  and 
Smith  before  the  State  court,  and  by  Mr.  Webster  in  the 
Supreme  Court,  in  the  College  case.  That  this  was  the 
favorite  doctrine  of  Story,  as  well  as  Webster,  is  not 
only  well  known  as  a  fact,  but  is  shown  by  Story's  letter 
to  Mason,  above  quoted,  and  in  his  subsequent  opinions 
in  Terrett  v.  Taylor  (9  Cranch,  50)  and  Society  v.  Pawlet 
(4  Pet.  480).  If  this  position  was  sound,  the  discussion  of 
the  obligation  clause  and  other  provisions  of  the  Federal 
Constitution  was  unnecessary,  Johnson  having  spoken  for 
himself. 

The  second  reason  assigned  for  the  judgment  is,  not  that 
the  annulling  act  was  prohibited  by  a  particular  provision,  — 
i.e. ,  the  obligation  clause,  —  but  by  ' '  particular  provisions  ' ' 
of  the  Constitution.  Those  "provisions"  are  sufficiently 
indicated  in  the  opinion.  The  argument  is,  that  the  rescind- 
ing act  was  void  because  — 

1.  It  was  virtually  a  bill  of  attainder. 

2.  It  was,  in  effect,  an  ex  post  facto  law. 

3.  It  impaired  the  obligation  of  contracts. 

Marshall  quotes  and  indorses  Blackstone's  definition 
of  contracts.  (2  Bla.  Comm.  *440,  *443,  chap.  30.)  This 
chapter  is  entitled, ' '  Title  by  gift,  grant,  and  contract. ' '  He 
says  :  "  Gifts,  then,  or  grants,  which  are  the  eighth  method 
of  transferring  personal  property,  are  thus  to  be  distin- 
guished from  each  other  :  that  gifts  are  always  gratuitous ; 
grants  are  upon  some  consideration  or  equivalent ;  and  they 
may  be  divided,  with  regard  to  their  subject-matter,  into 
gifts  or  grants  of  chattels  real  and  gifts  or  grants  of  chattels 
personal.  *  *  *  Grants  or  gifts  of  chattels  personal 
are  the  act  of  transferring  the  right  and  the  possession 
of  them ;  whereby  one  man  renounces  and  another  iinme- 


FLETCHER  V.   PECK OBLIGATION  OF  CONTRACTS.   405 

diately  acquires  all  title  and  interest  therein  ;  which  may 
be  done  either  in  writing  or  by  word  of  mouth,  attested  by 
sufficient  evidence,  of  which  the  delivery  of  possession  is 
the  strono-est  and  most  essential.  *  *  *  ^  contract 
may  also  be  either  executed,  as  if  A.  agrees  to  change  horses 
with  B.,  and  they  do  it  immediately;  in  which  case  the 
possession  and  the  right  are  transferred  together ;  or  it 
may  be  executory,  as  if  they  agree  to  change  next  week ; 
here  the  right  only  vests,  and  their  reciprocal  property  in 
each  other's  horse  is  not  in  possession,  but  in  action  ;  for  a 
contract  executed  (which  diifers  nothing  from  a  grant)  con- 
veys a  chose  in  possession;  a  contract  executory  conveys 
only  a  chose  in  action.''^  That  the  learned  author  did  not 
refer  to  the  effect  of  legislative  enactments  or  the  alienation 
of  sovereignty  is  too  obvious  for  comment.  It  is  impossible 
to  reconcile  the  definition  of  Blackstone  indorsed  by  Mar- 
shall with  Webster's  argument  in  the  Bridge  case.  Webster 
says  that  grants  are  donations  ;  Blackstone  and  Marshall, 
that  they  are  not.  Judge  Marshall  says  :  "  The  contract  be- 
tween Georgia  and  the  purchasers  was  executed  by  the  grant. 
A  contract  executed,  as  well  as  one  which  is  executory, 
contains  obligations  binding  on  the  parties.  A  grant,  in  its 
own  nature,  amounts  to  an  extinguishment  of  the  right  of  the 
grantor,  and  implies  a  contract  not  to  reassert  that  right. 
A  party  is,  therefore,  always  estojDped  by  his  own  grant." 

Precisely  what  is  meant  by  this  is  not  clear.  I  own  a 
cargo  of  flour.  About  my  title  there  is  no  dispute.  My 
neighbor,  knowing  all  about  it,  buys  it,  pays  for  it,  and 
takes  it  away.  What  obligation  do  I  owe  him  ;  what  obli- 
gation is  binding  on  me  ?  I  own  lands,  —  convey  them  with- 
out covenants.  The  purchaser  pays  me  and  enters  into 
possession.  What  obligation  binds  me?  If  a  legal  estop- 
pel is  meant,  it  would  seem  obvious  that  a  naked  grant 
carries  no  obligation  with  it.  The  contract  has  been  exe- 
cuted ;  it  has-  done  its  work.  It  is  true  that  parties  may 
couple  executory  agreements  with  the  subject  of  an  executed 


408  DARTMOUTH  COLLEGE  CAUSES. 

contract,  but  that  is  simply  saying  that  parties  may  make 
executory  contracts  if  they  choose,  and  that  the  obligation 
of  those  contracts  is  protected. 

It  was  not  true  that  a  grant,  ipso  facto,  amounted  to  an 
extinguishment  of  the  right  of  the  grantor,  and  implied  a 
contract  not  to  reassert  that  right.  It  is  true  that  this  had 
been  so  held  in  some  cases,  as  between  the  cro^ii  and  its 
grantee,  and  had  been  applied  indiscriminately  to  municipal 
as  well  as  other  corporations.  For  obvious  reasons,  no 
such  doctrine  had  ever  been  applied  as  between  Parliament 
and  its  grantees,  or  between  individuals. 

If  a  grant  —  which  Webster,  in  the  Charles  River  Bridge 
case,  says  is  a  donation  —  creates  by  implication  a  valid 
executory  contract  that  the  grantee  shall  enjoy  this  grant 
without  impairment,  or  that  the  party  of  the  first  part  shall 
not  reassert  the  right  of  a  grantor,  the  grantee  is  entitled 
to  redress  for  the  damages  to  which  he  may  be  put  by  a 
breach  of  that  implied  contract  by  the  grantor.  Does  the 
phrase  ' '  implied  contract ' '  mean  implied  covenant  ?  If  not, 
what  is  the  form  of  the  remedy?  If  the  title  enures  to  the 
legislative  grantee  by  estoppel,  how  can  he  recover  for  the 
loss  of  a  title  which  he  has  not  lost,  and  which,  being 
vested,  is  so  protected  by  the  Federal  Constitution  that  it 
can  neither  be  taken  away  nor  impaired  ?  The  idea  of  such 
a  contract  and  estoppel  is  irreconcilable. 

This  was  a  suit  at  law,  and  not  a  proceeding  on  the  equity 
side  of  the  court.  From  the  language  used,  the  context, 
and  the  general  drift  of  this  branch  of  the  opinion,  it  is 
hardly  within  the  range  of  possibilities  that  Marshall  re- 
ferred, in  his  opinion  in  Fletcher  v.  Peck,  to  what  is  now 
known  as  equitable  estoppel,  and  which  was  almost,  if  not 
entirely,  unknown  in  suits  at  law  when  that  case  was 
decided. 

Chief  Justice  Perley,  in  Horn  v.  Cole  (51  N.  H.  287), 
states  with  great  force  and  clearness  the  character  of,  and 
distinction  between,  legal  and  equitable  estoppels.    He  says  : 


LEGAL    AND    EQUITABLE    ESTOPPELS.  407 

"  The  ground  on  which  a  party  is  precluded  from  proving 
that  his  representations,  on  which  another  has  acted,  were 
false,  is,  that  to  permit  it  would  be  contrary  to  equity  and 
good  conscience.  Tliis  has  sometimes  been  called  an  equi- 
table estoppel,  because  the  jurisdiction  of  enforcing  this 
equity  belonged  originally  and  peculiarly  to  courts  of  equity, 
and  does  not  appear  to  have  been  familiarly  exercised  at  law 
until  within  a  comparatively  recent  date  ;  and,  so  far  as 
relates  to  suits  at  law  affecting  the  title  to  land,  I  under- 
stand that  in  England,  and  in  some  of  the  United  States, 
the  jurisdiction  is  still  confined  to  courts  of  equity.   *     *     * 

"  So,  in  a  writ  of  entry,  by  the  technical  rules  of  law,  if 
the  demandant  proves  seizin  in  himself,  and  disseizin  by  the 
tenant  within  the  time  of  limitation,  he  is  entitled  to  judg- 
ment ;  but  if  the  demandant,  having  a  dormant  title  to  the 
land  demanded,  concealed  his  title  and  encouraged  the  tenant 
to  purchase  from  another,  he  is  not  allowed,  in  our  practice, 
to  set  up  his  legal  title,  because  it  would  be  contrary  to 
equity  and  good  conscience. 

"  It  thus  appears  that  what  has  been  called  an  equitable 
estoppel,  and  sometimes  less  properly  an  estoppel  in  pais, 
is  properly  and  peculiarly  a  doctrine  of  equity,  originally 
introduced  there  to  prevent  a  party  from  taking  a  dishonest 
and  unconscientious  advantage  of  his  strict  legal  rights, 
though  now  with  us,  like  many  other  doctrines  in  equity, 
habitually  administered  at  law.  But  formerly  the  practice 
was  different,  and  suits  at  law,  the  courts  being  unable  to 
give  effect  to  this  equity,  were  often  enjoined  where  the 
party  insisted  on  his  rights  at  law,  contrary  to  the  equitable 
doctrine. 

' '  It  would  have  a  tendency  to  mislead  us  in  the  present 
inquiry,  as  there  is  reason  to  suspect  that  it  has  sometimes 
misled  others,  if  we  should  confound  this  doctrine  of  equity 
with  the  legal  estoppel  hy  matter  in  pais.  The  equitable 
estoppel  and  legal  estoppel  agree,  indeed,  in  this  :  that  they 
both  preclude  from  showing  the  truth  in  the  individual  case. 


408  DARTMOUTH    COLLEGE    CAUSES. 

The  grounds,  however,  on  which  they  do  it  are  not  only- 
different,  but  directly  opposite.      *     *     * 

"  Legal  estoppels  exclude  evidence  of  the  truth  and  the 
equity  of  the  particular  case,  to  support  a  strict  rule  of  law, 
on  grounds  of  public  policy. 

' '  Equitable  estoppels  are  admitted  on  exactly  the  oppo- 
site ground,  of  promoting  the  equity  and  justice  of  the  indi- 
vidual case  by  preventing  a  party  from  asserting  his  rights, 
under  a  general  technical  rule  of  law,  when  he  has  so  con- 
ducted himself  that  it  would  be  contrary  to  equity  and  good 
conscience  for  him  to  allege  and  prove  the  truth." 

Tlie  probabilities  are  but  little  stronger  that  Marshall 
referred  to  the  technical  estoppels  of  the  law.  They  were 
universally  recognized  at  that  time  as  odious,  were  strictly 
construed,  and  never  favored.  A  seal  does  not  necessarily 
estop  him  who  seals.  That  a  grantor  may  estop  himself  by 
a  solemn  admission  of  fact,  or  bind  himself  by  an  executory 
agreement  embodied  in  a  sealed  instrument,  was  as  well 
knoAvn  then  as  now,  and  it  is  entirely  immaterial  whether 
the  deed  was  a  warranty,  release,  or  quitclaim ;  but  the 
naked  grant  had  no  such  effect.  Some  have  supposed  that 
Marshall  meant  to  assert  the  principle  that  there  was  an 
implied  warranty  of  title  alike  in  sales  of  personal  and  real 
estate.  It  is  the  generally  recognized  American  rule,  at  the 
present  time,  that  the  seller  of  a  chattel,  if  in  possession, 
but  not  otherwise,  warrants,  by  implication,  that  the  title  is 
in  him.  It  is  unnecessary  to  consider  the  numerous  excep- 
tions to  this  rule,  and  limitations  upon  it.  Even  in  this 
qualified  form  it  was  not  the  settled  rule,  either  in  this 
country  or  Great  Britain,  when  Marshall  wrote  his  opinion  ; 
and  even  this  rule,  to  use  the  emphatic  language  of  Pro- 
fessor Parsons,  "  must  be  confined  to  sales  of  chattels.  In 
the  sale  of  real  estate  by  deed  there  are  no  implied  warran- 
ties." 

Taken  in  connection  with  the  position  of  counsel,  already 
stated,  the  only  simple  and  natural  explanation  of  the  Ian- 


Marshall's  "legal  fiction."  40!) 

guage  of  the  chief  justice,  which  we  have  quoted,  is  that  he 
saw  that  it  was  impossible  to  construe  .the  obligation  clause 
to  apply  to  any  but  executoiy  contracts  ;  that  he  thought 
its  framers  ought  to  have  protected  grants  and  conveyances 
as  well ;  that  he  felt  they  were  within  the  mischiefs  against 
which  they  should  have  guarded,  and  he,  therefore,  invented 
the  ' '  legal  fiction  ' '  that  an  executory  contract  was  always 
inside  the  body  of  an  executed  one,  in  order  to  bring  it 
within  the  protection  of  the  obligation  clause. 

A  comparison  of  the  opinions  and  the  position  of  the 
judges  who  sat  in  Fletcher  v.  Peck  and  Trustees  v.  Wood- 
ward shows  a  marked  change  in  nine  years.  Marshall  did 
not,  in  the  College  case,  as  in  the  former,  put  the  decision 
upon  several,  but  a  single  provision  of  the  Constitution. 
The  positions  that  the  acts  were  void  because  they  were 
virtually  bills  of  attainder,  or  ex  post /ado  laws,  the  argument 
in  support  of  which  occupies  so  conspicuous  a  place  in  the 
opinion  in  Fletcher  v.  Peck,  were  apparently  abandoned, — 
at  all  events,  they  disappeared,  —  with  the  position  that 
the  State  was  estopped.  But  the  implied  contract,  to  which 
the  question  of  estoppel  was  mistletoed  in  some  mysterious 
way,  still  appears.  Singular  as  it  may  seem,  Mr.  Justice 
Johnson,  after  the  somewhat  remarkable  conference  at 
Albany,  descends  from  the  j)edestal  of  his  "  higher  law," — 
the  highest  ever  heard  of,  that  "  which  will  impose  laws 
even  on  the  Deity,"  — abandons  his  stout  dissent  from  Mar- 
shall, in  Fletcher  v.  Peck,  in  relation  to  the  obligation 
clause,  and  concurs  in  the  judgment  in  the  College  case 
"for  the  reasons  stated  by  the  chief  justice,"  Whether 
this  was  the  result  of  the  compromise  in  Sturges  v.  Crown- 
inshield,  or  in  some  other  case,  and,  if  so,  how  much  was 
saved  because  "the  minority  thought  it  better  to  yield 
something  than  risk  the  whole,"  we  have  no  means  of 
knowing. 

We  need  not  search  far  for  Marshall's  real  reasons.  He 
feared  the  people  and  the  States.     He  felt  that  there  should 


410  DARTMOUTH  COLLEGE  CAUSES. 

be  a  restraining  power  somewhere.  He  thought  it  would  be 
exercised  with  more  safety  and  consideration  by  the  court  — 
i.e.,  himself — than  by  any  other  department  of  the  govern- 
ment. He  seized  the  elastic  words  of  the  obligation  clause 
and  gave  them  the  construction  which  he  thought  would 
best  accomplish  that  end. 


CHAPTER    XYL 

MAKSHALL'S  OPINION  IN  TRUSTEES  v.  WOODWARD  — ASSUMES 
THE  CHARTER  TO  BE  A  CONTRACT— RESUME  OF  THE 
FACTS- HOW  STATED  BY  MARSHALL  —  CHANGES  THE 
LANGUAGE  OF  THE  PREAMBLE  TO  THE  CHARTER  — FUNDS 
CONTRIBUTED  TO  MOOR'S  SCHOOL,  NOT  THE  COLLEGE  — 
LIMITS  THE  MEANING  OF  THE  OBLIGATION  CLAUSE  — UN- 
SATISFACTORY TEST  — OWINGS  v.  SPEED,  ABB  CREASE  v. 
BABCOCK  — OATH  REQUIRED  BY  THE  CHARTER  — OATH 
REQUIRED  BY  THE  LEGISLATURE  —  THE  LATTER  A  CONSTI- 
TUTIONAL PUBLIC  LAW  — THE  UNIVERSITIES  —  GRANGER 
CASES  — DISSENTING  OPINIONS— BOSTON  BEER  COMPANY 
V.  MASSACHUSETTS  —  RECENT  DECISIONS  — PROGRESS  OF 
THE  SUPREME  COURT  — TRUE  PRINCIPLES,  "IN  THE  END," 
MUST  GOVERN. 

The  opinion  of  the  chief  justice  in  Trustees  v.  Woodward 
is  very  able.  Less  could  not  have  been  expected  from  such 
a  man,  in  such  a  cause,  under  such  circumstances.  He  had 
decided  the  case  in  March,  1818,  and  knew  how  nearly  alone 
he  stood,  for  Judge  Washington  had  restricted  his  reason- 
ing so  as  to  "  prevent  any  implied  decision  by  this  court 
of  any  other  case  than  the  one  immediately  before  it." 
He  knew  the  views  of  the  doubting  as  well  as  the  recalci- 
trant judges,  and  he  had  abundant  leisure  in  which  to  adapt 
his  opinion  to  the  exigencies  of  the  case.  To  these  con- 
siderations we  undoubtedly  owe  the  fact  that,  in  clearness 
and  massive  strength,  this  opinion  falls  far  short  of  those 
given  in  Gibbons  v.  Ogden,  Brown  v.  Maryland,  McCul- 
loch  V.  Maryland,  Ogden  v.  Saunders,  and  other  cases  that 
might  be  named.  It  is  as  remarkable  for  its  omissions,  for 
the  coloring  with  which  he  invested  and  the  fog-bank  in 
which  he  enveloped  the  facts,  as  it  is  for  the  skill  and  subtle 

(411) 


412  DARTMOUTH  COLLEGE  CAUSES. 

force  of  statement  which  enabled  him  to  transfer  it  to  the 
domain  of  abstract  reasoning. 

He  opens  the  discussion  with  the  following  characteristic, 
but  remarkable  statement.  He  says:  "It  can  require  no 
argument  to  prove  that  the  circumstances  of  this  case  con- 
stitute a  contract.  An  application  is  made  to  the  crown  for 
a  charter  to  incorporate  a  religious  and  literary  institution. 
In  the  application  it  is  stated  that  large  contributions  have 
been  made  for  the  object,  which  mil  be  conferred  upon  the 
corporation  as  soon  as  it  shall  be  created.  The  charter  is 
granted,  and  on  its  faith  the  property  is  conveyed.  Surely, 
in  this  transaction,  every  ingredient  of  a  complete  and 
legitimate  contract  is  to  be  found.'' 

Few  men  admired  Marshall  as  much  as  Wirt,  who  says  : 
"  In  a  bad  cause  his  art  consisted  in  laying  his  premises  so 
remotely  from  the  point  directly  in  debate,  or  else  in  terms 
so  general  and  so  specious,  that  the  hearer,  seeing  no  con- 
sequence which  could  be  drawn  from  them,  was  just  as 
willing  to  admit  them  as  not."  Nothing  could  be  more 
applicable  than  this  to  portions  of  the  paragraph  we  have 
quoted  from  the  opini-on. 

The  vital  question  was  not,  as  Judge  Marshall  has  put  it, 
whether  the  charter  was  a  ' '  contract "  in  a  common-law 
sense,  or  some  other  sense,  but  whether  it  was  a  contract  in 
a  constitutional  sense. 

The  chief  justice  had  abundant  opportunity  for  knowing 
the  most  essential  facts.  His  opinion  as  reported,  as  well 
as  that  in  Baptist  Association  v.  Hart's  Executors,  and  the 
most  essential  part  of  another  to  which  we  have  already 
referred,  was  wrought  out  by  him,  at  his  leisure,  during  the 
long  vacation  between  March  14,  1818,  and  February  1, 
1^19.  He  had  before  him,  before  his  opinion  was  reported, 
the  special  verdicts  in  these  causes,  and  the  stipulations 
sent  up  with  them  ;  he  had  heard  all  that  was  said  by  Web- 
ster, Hopkinson,  Holmes,  and  Wirt  in  the  first  case,  and 
had  Webster's  brief;  he  had  heard  the  arguments  of  Wirt, 


TRUSTEES    V.  WOODWARD THE  VITAL  QUESTION.       413 

Pinkiiey,  and  Webster  in  relation  to  the  facts  in  the  other 
causes,  upon  the  hitter's  motion  for  a  judgment  nunc  pro 
tunc  in  Trustees  v.  Woodward,  and  had  participated  in  the 
informal  conferences  between  court  and  counsel  which  fol- 
lowed. 

The  proposition  quoted  is,  in  effect,  that  it  was  self-evi- 
dent that  the  charter  was  a  contract.  Marsliall  apparently 
treats  the  remainder  of  the  paragraph  as  conclusive  evidence 
of  the  truth  of  this  proposition.  If  so,  its  terms,  "  so  gen- 
eral and  so  specious,"  could  hardly  have  been  better  calcu- 
lated to  confuse  and  mislead. 

The  internal  evidence  afforded  by  the  charter  itself  shows 
that,  though  the  substance  may  have  been  furnished  by 
Wheelock,  its  legal  verbiage  and  framework  were  the  work 
of  lawyers  ;  and,  were  it  otherwise,  history  would  bring  us 
to  the  same  conclusion,  for  we  know  who  did  it.  These 
terms  must  be  presumed  to  have  been  used  in  the  sense  in 
which  they  were  used  by  skilled  lawyers  of  that  day. 

The  paragraph  quoted  in  relation  to  "an  application," 
etc.,  is  manifestly  an  inference  drawn  by  Marshall  from  the 
recitals  in  the  charter  and  the  finding  in  the  special  verdict, 
that  the  trustees  accepted  and  assented  to  the  letters-patent ; 
that  the  College  corporation  was  duly  organized ;  and  that, 
"  immediately  after  its  erection  and  organization  as  afore- 
said, the  said  corporation  had,  took,  acquired,  and  received, 
by  gift,  donation,  devise,  and  otherAvise,  lands,  goods,  chat- 
tels, and  monies  of  great  value,"  etc. 

Marshall  says  "an  application"  was  "made  to  the 
crown,  "  reciting  what  he  says  "  is  stated  "  "in  the  applica- 
tion." In  this  he  follows  Webster's  brief,  instead  of  the 
language  of  the  preamble  in  the  charter  itself.  If  at  all, 
this  was  true  only  in  a  specially  narrow  and  exceptional 
sense.  No  application  was,  in  fact,  made  to  the  king  ;  nor 
did  he,  in  fact,  grant  the  charter  ;  nor  did  he  know  of  either  ; 
and  the  same  is  true  of  the  Home  Office.  An  application, 
in  its  normal  legal  sense,  is  a  petition  in  writing  ;  and  we 


414  DARTMOUTH  COLLEGE  CAUSES. 

are  compelled  to  believe  from  the  context  that  Marshall  used 
the  term  in  this  sense. 

If,  by  a  fiction  of  law,  Governor  Wentworth  could  be 
treated  as  the  crown,  it  is  equally  clear  that  no  such  '*  appli- 
cation "  was  made  to  him. 

After  Wheelock  had  ascertained,  through  Cleveland, 
that  the  governor  would  grant  the  charter  for  the  Indian 
Charity-School,  like  a  sensible  man,  he  put  his  papers,  etc., 
into  the  hands  of  his  legal  advisers,  and  had  them  put  in 
form,  not  an  "  application  "  for  a  charter,  l)ut  a  draught  of 
a  charter  itself.  This  draught,  Avhich  was  placed  by  Whee- 
lock in  the  hands  of  Governor  Wentworth,  neither  was  nor 
assumed  to  be  a  charter  of  the  College.  Wentworth,  under 
the  advice  of  his  counsel,  amended  the  charter  in  important 
particulars,  and,  thus  amended,  he  issued  it  under  the  great 
seal  of  the  province. 

Webster  and  Marshall  substituted  for  the  word  "  repre- 
sented," which  is  used  in  the  preamble,  the  word  "  applica- 
tion." No  one  can  read  the  charter  without  appreciating 
the  marked  difference  in  the  meaning  of  these  terms 

Marshall  says  the  application  was  "  for  a  charter  to  incor- 
porate a  literary  and  religious  institution."  What  "  relig- 
ious and  literary  institution  ?  ' '  Few  would  gather  what  the 
truth  was  from  the  seemingly  studied  ambiguity  of  this 
phrase. 

The  representation  referred  to  is  incorporated  in  the  pre- 
amble in  these  words  :  ' '  And  the  said  Wheelock  has  further 
represented  a  necessity  of  a  legal  incorporation  in  order  to  the 
safety  and  well-being  of  said  seminary,  and  its  being  capable 
of  the  tenure  and  disposal  of  lands  and  bequests  for  the  use 
of  the  same."  The  representations  set  forth  in  the  pre- 
amble, and  which  precede  the  one  we  have  quoted,  remove 
every  possibility  of  doubt  as  to  what  was  intended  by  the 
term  "  seminary."  They  refer,  with  the  utmost  distinct- 
ness, not  to  what,  in  fact,  had  no  existence,  but  to  Moor's 
Indian  Charity-School,  which  had  existed  for  years.     Mar- 


* '  APPLICATION  ' '  AND  ' '  REPRESENTATIONS . "  415 

shall' s  statement  confounds  the  two,  makes  them  one,  and 
treats  them  as  identical. 

We  have  shown  —  and  might  at  far  greater  length  —  by 
the  whole  course  of  proceedings  before  the  granting  of  the 
charter ;  by  the  action  of  the  trustees  of  the  College  at  their 
first  meeting  under  it ;  by  the  emphatic  declarations  and 
the  life-long  conduct  of  the  elder  Wheelock  in  relation  to  the 
separation  of  the  funds,  and  otherwise  ;  by  the  early  legisla- 
tion in  relation  to  Moor's  Charity-School,  which  has  gone 
unquestioned  to  this  day  ;  and  by  the  conduct  of  the  second 
Wheelock  and  his  successors  until  the  charity-school  virtu- 
ally expired,  that  this  attempted  confounding  of  the  two 
was  directly  in  the  teeth  of  the  plans,  purposes,  and  inten- 
tions, not  only  of  those  who  procured  the  charter,  but  of 
those  to  whom  it  was  secured. 

Marshall  next  says  :  "In  the  application  it  is  stated  that 
large  contributions  have  been  made  for  the  object,  which  will 
be  conferred  on  the  corporation  as  soon  as  it  shall  be 
created." 

It  is  clear,  though  Webster  had  too  much  sagacity  and 
circumspection  to  put  it  in  that  peculiar  form,  that  he  here 
again  alludes  to  the  representations  referred  to  in  the  pre- 
amble. 

It  is  impossible  to  set  forth  in  detail  each  gift,  donation, 
subscription,  and  grant,  with  the  circumstances  attending  it, 
and  we  shall  not  attempt  it.  An  examination  of  the  history 
already  given,  and  of  the  preamble,  will  be  sufficient. 

The  representations  in  the  preamble  are  :  — 

1.  That  Dr.  Wheelock,  on  or  about  1754,  in  Connecticut, 
*'  at  his  own  expense,  on  his  own  estate  and  plantation,  set 
on  foot  an  Indian  Charity-School ;  "  that  he,  "  for  several 
years,  through  the  assistance  of  well-disposed  persons  in 
America,  clothed,  maintained,  and  educated  a  number  of  the 
children  of  the  Indian  natives,  with  a  view  to  their  carrying 
the  gospel  in  their  own  language,  and  spreading  the  knowl- 
edge of  the  Great  Redeemer,  among  their  savage  tribes,  and 


416  DARTMOUTH  COLLEGE  CAUSES. 

hath  actually  employed  a  number  of  them  as  missionaries  and 

school-masters  in  the  wilderness  for  that  purpose  ;  "  "  that 
the  design  became  reputable  among  the  Indians,  insomuch 
that  a  laro;er  number  desired  the  education  of  their  children 
in  said  school,  and  were  also  disposed  to  receive  missionaries 
and  school-masters  in  the  wilderness,  more  than  could  be 
supported  by  the  charitable  contributions  in  these  American 
colonies  ;  "  that  "  Wheelock  thought  it  expedient  that  en- 
deavors should  be  used  to  raise  contributions  from  well- 
disposed  persons  in  England  for  the  carrying  on  and 
extending  said  undertaking,"  and  sent  Whitaker  and  Occom 
to  England  "for  that  purpose ;  "  that,  to  enable  Whitaker 
the  more  successfully  to  perform  his  work,  Wheelock  gave 
him  a  full  power  of  attorney,  by  which  Whitaker  solicited 
the  Earl  of  Dartmouth  and  eight  other  "  contributors  to  the 
charity"  "to  receive  the  several  sums  of  money  which 
should  be  contributed  to  such  charity,  which  they  cheerfully 
agreed  to  do  ;  "  that  these  nine  were  duly  appointed  "  trus- 
tees of  the  money  which  had  then  been  contributed,  and 
which  should,  by  his  means,  be  contributed  for  said  pur- 
pose ;  "  that  the  trustees  had  "accepted"  this  "trust" 
"under  their  hands  and  seals,"  and  that  the  same  had 
been  duly  "  ratified  by  a  deed  of  trust"  duly  executed  by 
Wheelock. 

The  purpose  of  Wheelock  in  this  is  perfectly  obvious. 
He  desired  to  raise  funds  in  Great  Britain  to  build  up  his 
school  in  Connecticut.  He  knew  that  he  was  unknown  to  the 
mass  of  those  who  would  naturally  be  disposed  to  favor  his 
design,  and  that  they  would  be  likely  to  contribute  much 
more  freely  if  they  knew  that  their  funds  were  to  be  placed 
in  the  hands  of  some  of  the  most  eminent  men  in  the  king- 
dom as  trustees,  who  would  keep  the  expenditures  within 
the  scope  of  the  trust.  Nine  thousand  four  hundred  and 
ninety-four  pounds,  seven  shillings,  and  seven  and  one- 
half  pence  were  thus  raised  in  England,  and  placed  in 
the  hands  of  these  trustees.     This,  with  the  Scotch  fund, — 


WHEELOCK's    purpose FUNDS.  417 

likewise  a  trust-fund, — made  about  £12,000.  In  those 
days  this  was  a  large  sum  to  be  applied  for  such  a  pur- 
pose in  the  primitive  regions  of  the  New  World.  Not  a 
penny  of  this  sum  was  contributed  for  a  college,  or  any 
other  purpose,  in  New  Hampshire.  Wheelock  had  bestowed 
funds  of  his  own  upon  his  Connecticut  school.  He  was 
not  the  owner  of  this  £12,000  in  his  own  right.  At  best, 
he  was  not  the  owner  in  any  sense,  other  than  any  trus- 
tee is  the  owner  of  trust-funds  conveyed  to  him  by  a  trust- 
deed  for  a  specified  purpose.  The  English  funds  were  col- 
lected and  paid  into  the  hands  of  these  trustees,  and  held  by 
them  under  a  deed  of  trust.  This  was  confirmed  by 
Wheelock  by  his  deed.  These  funds  could  in  no  sense  be  con- 
sidered the  funds  of  Wheelock  ;  and  the  same  is,  in  general, 
true  of  the  Scotch  fund.  The  trustees  had  no  authority  to 
expend  these  funds  in  building  a  college  in  New  Hampshire  ; 
and  their  agent,  Dr.  Wheelock,  had  less,  if  such  a  thing  is 
possible.  The  stream  could  not  rise  higher  than  the  foun- 
tain. But,  as  we  have  seen,  the  trustees  were  opposed  to 
an  incorporation  of  the  School  even ;  they  knew  nothing 
about  the  incorporation  of  the  College  ;  they  were  not  con- 
sulted about  it ;  it  was  done  behind  their  backs  ;  and  when 
they  ascertained  the  fact,  they  were  exceedingly  indignant 
about  it,  and  regarded  it  as  an  attempt  to  pervert  the  trust 
and  annihilate  their  powers. 

To  do  Wheelock  justice,  he  did  not  claim  that  these  funds 
could  be  used  for  College  purposes  ;  he  conceded  that  they 
could  not .  He  erected  the  first  buildings  with  Charity-School 
funds,  etc.  ;  but  he  justified  this  expenditure  distinctly  upon 
the  ground  that  it  was  made,  not  for  the  College,  but  for 
the  Charity-School,  for  which  the  funds  were  contributed. 

Assuming  that  he  understood  the  facts,  the  implication 

from  Marshall's  statement  would  seem  to  be  that  the  "rov- 
es 

ernor  of  thepro\'ince,  upon  whom  the  crown  had  never  (con- 
ferred the  power  to  create  such  a  corporation,  had  the  lawful 
authority  to  take  from  the  trustees  in  the  mother  country, 


418  DARTMOUTH  COLLEGE  CAUSES. 

"wathout  their  consent  and  against  their  will,  the  funds  com- 
mitted to  their  keeping,  and  thereon  lay  the  foundation  of 
another  institution,  which  none  of  the  donors  had  in  mind 
when  they  made  their  contributions,  and  that  such  taking 
was  protected  by  the  obligation  clause.  There  is  no  such 
1>lemish  from  Wheelock's  standpoint  that  the  School  and 
College  were  distinct. 

It  is  sufficiently  ob\'ious  that  these  contributions  were  not 
made  "  for  the  object"  of  establishing  Dartmouth  College, 
or  that  these  funds  were  to  "  be  conferred  ' '  on  that ' '  corpo- 
ration as  soon  as  it  shall  be  created." 

2.  That  Wheelock  had  "  given  full  power  to  said  trustees 
to  fix  upon  and  determine  the  place  of  said  school  most  sub- 
servient to  the  great  end  in  view ;  and,  to  enable  them 
understandingly  to  give  the  preference,  the  said  Wheelock 
has  laid  before  the  said  trustees  the  several  offers  which 
have  been  generously  'made  in  the  several  governments  in 
America,  to  encourage  and  invite  the  settlement  of  said 
school  a7nong  (hem  for  their  own  private  Emolument  and  the 
increase  of  learning  in  their  respective  places,  as  well  as  for 
the  furtherance  of  the  general  design  in  view  ;  "  "  that  a  large 
number  of  the  proprietors  of  lands  in  the  western  part  of 
this  our  Province  of  New  Hampshire,  animated  and  excited 
thereto  by  the  generous  example  of  his  Excellency,  their 
Governor,  and  by  the  liberal  contributions  of  many  noble- 
men and  gentlemen  in  England,  and  especially  by  the  con- 
sideration that  such  a  situation  would  be  as  convenient  as 
any  for  carrying  on  the  great  design  among  the  Indians ; 
and  also  considering  that,  without  the  least  impediment  to 
the  said  design,  the  same  school  may  be  enlarged  and 
improved  to  promote  learning  among  the  English,  and  be  a 
means  to  supply  a  great  number  of  churches  and  congrega- 
tions, which  are  likely  soon  to  be  formed  in  that  new  coun- 
try, with  a  learned  and  orthodox  ministry,  they,  the  said 
proprietors,  have  promised  large  tracts  of  land  for  the  uses 
aforesaid,  provided  the  school  shall  be  settled  in  the  western 


REPRESENTATIONS  REFER  TO  SCHOOL,  NOT  COLLEGE.   419 

part  of  our  said  Province;"  that  the  trustees  had  "given 
the  preference  to  the  western  part  of  our  said  Province, 
lying  on  the  Connecticut  river,  as  a  situation  most  conven- 
ient for  said  school."  Then  follow  tlie  representations  in 
relation  to  a  charter,  which  we  have  already  quoted.  The 
preamble  then  sets  forth  that  Wheelock  had  represented 
that,  in  the  infancy  of  the  institution,  the  gentlemen  nomi- 
nated by  him  in  his  last  will  as  ' '  trustees  in  America  should 
be  of  the  corporation  now  proposed  ;  "  "  that  also,  as  there 
are  already  large  collections  for  said  school  in  the  hands  of 
the  aforesaid  gentlemen  of  the  trust  in  England,"  etc., 
"  said  Wheelock  desires  that  the  trustees  aforesaid  may  be 
vested  with  all  that  power  therein  which  can  consist  Avith 
their  distance  from  the  same." 

Few  things  are  clearer  than  that  all  this  refers  to  the 
Charity-School  and  the  trust  funds  collected  for  it. 

This  is  made  almost  self-evident  from  the  fact  that  the 
preamble  to  the  charter  and  the  preamble  to  the  Wheelock 
draft  are  precisely  alike,  with  the  exception  of  a  dozen 
verbal  changes  which  in  nowise  affect  the  sense.  This 
draft  was  incontestably  framed  months  before  any  sugges- 
tion was  made,  even  in  the  postscript  of  a  letter,  that 
Wheelock,  or  those  he  represented,  desired  a  charter  for  a 
college,  or  that  the  Indian  Charity-School  or  its  funds  should 
be  swallowed  up  in  it. 

We  have  already  adverted  to  the  pointed  terms  in  which 
a  variety  of  donations  and  conveyances,  as  well  as  the 
subscriptions  of  1755,  were  made  to  the  School,  not  to  the 
College. 

Marshall  says  :  "  The  charter  is  granted,  and  on  its  faith 
the  property  is  conveyed."  A  few  pages  further  on,  he 
says  :  * '  From  this  brief  review  of  the  most  essential  parts 
of  the  charter  it  is  apparent  that  the  funds  of  the  College 
consisted  entirely  of  private  donations.  It  is,  perhaps,  not 
very  important  who  were  the  donors.  The  prolial)ility  is 
that  the  Earl  of  Dartmouth  and  the  other  trustees  in  Eng- 
land were,  in  fact,  the  largest  contributors.        *     *     * 


4:20  DARTMOUTH  COLLEGE  CAUSES. 

*'  It  is  not  too  much  to  say,  that  the  funds  were  obtained 
by  him,  in  trust,  to  be  applied  by  him  to  the  purposes  of 
his  enhiro-ed  school." 

The  fact  was,  that  when  the  charter  was  granted,  and  for 
months  afterwards,  the  College  had  no  funds  whatever, 
aside  from  the  Landaff  grant,  and  not  a  penny  had  been 
pledged  to  it,  so  far  as  appears.  The  Charity-School,  at  this 
time,  was  an  existing  institution.  About  $60,000  had  been 
raised  in  the  mother  country  for  it,  besides  several  thousand 
dollars  in  this  country,  and,  besides,  the  Landaff  grant  of 
twenty-four  thousand  acres,  which  had  been  pledged,  not  to 
the  College,  but  to  the  School,  and  without  which  the  one 
would  never  have  been  removed  to  New  Hampshire,  or  the 
other  created.  The  Earl  of  Dartmouth  and  the  trustees 
contributed  nothing  to  the  College,  but  to  the  School. 

The  only  inference  to  be  drawn  from  the  language  of  the 
chief  justice  is,  that  the  crown  promised  to  grant  a  charter, 
not  for  the  Charity-School,  but  for  the  College,  and  that 
upon  the  faith  of  this  promise  all  the  ' '  funds ' '  to  which 
we  have  referred  were  raised  for  the  College,  and  were 
given  and  conveyed  to  it  as  soon  as  it  was  chartered. 

This  subtle  statement  evades  the  question  of  royal  founda- 
tion, on  the  one  hand,  as  Story's  definition  of  a  public  cor- 
poration did  upon  the  other.  As  we  have  already  seen. 
Governor  Wentworth  made  the  promise  of  the  Landaff 
grant  at  the  same  time  he  promised  to  grant  the  charter. 
The  promise  was  in  terms  made  "  to  the  use  of  the  School," 
and  the  School  was  to  have  "  the  quit-rents  "  "  free." 

The  first  donations  given  to  the  School  had  been  eaten  up 
years  before  the  project  of  any  foundation  in  New  Hamp- 
shire had  been  thought  of,  while  the  Landaff  grant  was 
undoubtedly  the  first  conveyance  to  the  College. 

If  the  date  of  this  conveyance  is  to  be  disregarded,  and 
the  "  promise  "  is  to  be  relied  on  for  the  purpose  of  fixing 
the  "foundation,"  it  does  not  change  the  result  whether 
the  conveyance  to  the  College  was  a  breach  of  the  promise 
and  a  perversion  of  the  donative  trust,  or  otherwise  ;  for 


riarshall's  "statement"  and  the  fact.         421 

this  "  promise  "  was  made  in  1768,  at  the  same  time  as  the 
promise  for  a  charter  for  Moor's  School,  was  indissolubly 
linked  therewith,  and  was  not  only  the  first  in  the  province, 
but  the  pivot  promise  which  brought  the  institution  here. 

If  the  promise  made  by  the  governor  is  to  be  treated  as 
made  by  the  crown,  it  would  bo  a  royal  foundation,  and 
Marshall  concedes,  in  his  opinion,  that  the  Revolution  put 
the  State  in  the  place  of  the  crown  and  Parliament ;  and 
this  would  make  the  State  the  visitor,  as  suggested  by 
Mason. 

Whether  the  distinctive  character  and  legal  efficacy  of  a 
royal  grant  can  be  drowned  out  because  other  gifts  were  made 
by  individuals,  and  the  grant  itself  transformed  thereby  into 
"  private  donations,"  is  at  least  questionable. 

This  fundamental  error  embraced  in  Marshall's  statement 
is  repeated  in  a  great  variety  of  forms,  and  pervades  the 
entire  opinion.  As  we  have  already  shown,  this  proposi- 
tion is  contrary  to  the  facts,  and  unwarranted  by  the  find- 
ings in  the  special  verdict. 

The  conjecture  in  relation  to  the  Earl  of  Dartmouth  is 
but  little  nearer  the  truth  than  this  opinion,  based  upon  the 
assumption.  "Whether  we  say,  with  Webster,  that  "the 
recitals  in  the  charter  were  conclusive,"  or,  with  Story,  that 
there  is  not  the  "  least  contradiction  "  between  the  "  new 
facts  and  the  recitals,"  we  arrive  at  the  same  conclusion, — 
that  these  "  funds  "  were  the  funds  of  the  School,  and  not 
of  the  College. 

Upon  his  assumption  —  having  decided  in  less  than  two 
lines,  without  reference  to  any  authority  whatever,  that  this 
charter  was  a  contract  —  he  concedes,  in  the  next  para- 
graph, that  the  question  before  the  court  was,  not  whether 
it  was  a  contract,  but  whether  it  was  a  contract  in  a  consti- 
tutional sense. 

We  have  already  noted  some  of  the  changes  in  the  drift 
since  the  opinion  in  Fletcher  v.  Peck.  In  that  case,  Mar- 
shall based  the  vital  portion  of  his  argument  in  relation  to 


422  DARTMOUTH  COLLEGE  CAUSES. 

contracts  upon  the  definition  of  a  grant  quoted  from  Black- 
stone.  In  his  opinion  in  the  College  case  he  makes  no 
allusion  to  that  or  any  other  definition  or  authority  upon 
that  point.  Indeed,  he  does  not  assume  to  base  it  upon 
authority.  He  simply  refers  twice  to  Blackstone  upon  a 
point  not  decided,  and,  in  summing  up  on  another  point, 
says :  "  This  opinion  appears  to  us  to  be  equally  supported 
by  reason  and  by  the  former  decisions  of  this  court." 

In  Fletcher  v.  Peck,  Marshall  put  his  decision,  so  far 
as  the  obligation  clause  is  concerned,  upon  the  ground 
that  it  covered  both  executory  and  executed  contracts, 
because  "  they  [the  words]  are  general,  and  are  applicable 
to  contracts  of  every  description." 

In  Ogden  v.  Saunders,  Webster  simply  reechoes  this 
when  he  says  :  "  The  words  are  general.  The  States  can 
pass  no  law  impairing  contracts,  —  that  is,  any  contract." 

The  chief  justice  was  not  allowed  to  forget  this,  for  Mr. 
Hopkinson,  in  his  argument,  said  :  "  Then  it  is  said  this  is 
not  such  a  contract  as  is  intended  in  the  Constitution. 
Why  not  f  The  Constitution  speaks  of  contracts  generally. 
No  discrimination  or  limitation.  Who  then  shall  make 
one?" — and  cited  as  authority,  Fletcher  v.  Peck.  But 
Marshall,  in  Trustees  v.  Woodward,  found  it  necessary  to 
disregard  this  argument,  and  the  authority  of  his  own  opin- 
ion, to  impose  important  "  limitations  "  upon  this  doctrine, 
and  to  concede  that  there  were  many  contracts  not  pro- 
tected by  the  Constitution. 

We  have  seen  that  the  author  of  the  obligation  clause 
regarded  all  our  constitutions  and  laws  as  contracts,  in  a 
general  sense. 

On  account  of  his  location,  Hopkinson  was  familiar  with 
Wilson's  Works,  if  the  court  were  not,  and  in  his  argu- 
ment cited  them  as  authority  to  this  point. 

If  they  were  contracts  in  a  constitutional  sense,  no  law 
or  Constitution  could  be  altered  or  amended  unless  that 
power  was  reserved  therein.     Webster,  in  one  of  his  most 


"CON'TKACt"   in    FLETCHER    V.  PECK.  423 

important  arguments,  brought  Marshall  and  his  court  face 
to  face  with  the  fact  that  none  of  the  constitutions  of  the 
original  thirteen  States,  .save  that  of  New  Hampshire,  con- 
tained any  provisions  for  their  amendment. 

To  avoid  the  effect  of  this  argument,  Marshall,  in  Trustees 
V.  Woodward,  says  :  "  On  the  first  point  it  has  been  argued 
that  the  word  '  contract,'  in  its  broadest  sense,  would  com- 
prehend the  political  relations  between  the  government  and 
its  citizens  ;  would  extend  to  offices  held  within  a  State  for 
State  purposes,  and  to  many  of  those  laws  concerning  civil 
institutions  which  must  change  with  circumstances,  and  be 
modified  by  ordinary  legislation,  which  deeply  concern  the 
publick,  and  which,  to  preserve  good  government,  the  pub- 
lick  judgment  must  controul.  That  even  marriage  is  a  con- 
tract, and  its  obligations  are  affected  by  the  laws  respecting 
divorces.  That  the  clause  in  the  Constitution,  if  construed 
in  its  greatest  latitude,  would  prohibit  these  laws.  Taken 
in  its  broad,  unlimited  sense,  the  clause  would  be  an  unprofit- 
able and  vexatious  interference  with  the  internal  concerns 
of  a  State  ;  would  unnecessarily  and  unwisely  embarrass  its 
legislation,  and  render  immutable  those  civil  institutions 
which  are  established  for  purposes  of  internal  government, 
and  which,  to  subserve  those  purposes,  ought  to  vary  with 
varying  circumstances.  That  as  the  framers  of  the  Consti- 
tution could  never  have  intended  to  insert  in  that  instrument 
a  provision  so  unnecessary,  so  mischievous,  and  so  repug- 
nant to  its  general  spirit,  the  term  '  contract '  must  be  under- 
stood in  a  more  limited  sense.  That  it  must  be  understood 
as  intended  to  guard  against  a  power  of  at  least  doubtful 
utility,  the  abuse  of  which  had  been  extensively  felt,  and  to 
restrain  the  legislature  in  future  from  violatingf  the  rio-ht  to 
property.  That  anterior  to  the  formation  of  the  Constitu- 
tion a  course  of  legislation  had  prevailed  in  many,  if  not  in 
all,  of  the  States,  which  weakened  the  confidence  of  man  in 
man,  and  embarrassed  all  transactions  between  individuals, 
by  dispensing  with  a  faithful  performance  of  engagements. 
To  correct  this  mischief,  I)}'  restraining  the  power  which 


424  DARTMOUTH  COLLEGE  CAUSES. 

produced  it,  the  State  legislatures  were  forbidden  '  to  pass 
any  law  impairing  the  obligation  of  contracts,'  — that  is,  of 
contracts  respecting  property,  under  which  some  individual 
could  claim  a  right  to  something  beneficial  to  himself ;  and 
that  since  the  clause  in  the  Constitution  must,  in  construction, 
receive  some  limitation,  it  maybe  confined,  and  ought  to  be 
confined,  to  cases  of  this  description ;  to  cases  within  the 
mischief  it  was  intended  to  remedy. 

**  The  general  correctness  of  these  observations  cannot  be 
controverted.  That  the  framers  of  the  Constitution  did  not 
intend  to  restrain  the  States  in  the  regulation  of  their  civil 
institutions,  adopted  for  internal  government,  and  that  the 
instrument  they  have  given  us  is  not  to  be  so  construed,  may 
be  admitted.  The  pro^dsion  of  the  Constitution  never  has 
been  understood  to  embrace  other  contracts  than  those  which 
respect  property,  or  some  object  of  value,  and  confer  rights 
which  may  he  asserted  in  a  court  of  justice.  It  never  has  been 
understood  to  restrict  the  general  right  of  the  legislature 
to  legislate  on  the  subject  of  divorces." 

The  short  of  all  this  is,  that  the  term  "  contracts  "  is  used 
in  the  Constitution,  not  in  a  general,  but  in  a  limited  sense  ; 
that  that  instrument  is  to  be  read  as  though  the  word^ecw- 
niary,  or  some  essentially  equivalent  word  or  phrase,  was 
written  in  before  the  word  "contracts."  And  Ogden  v. 
Saunders  substantially  incorporates  the  word  retrospective 
before  the  word  "  law  "  in  the  obligation  clause. 

The  term  "  contracts,"  in  its  normal  sense,  refers  to 
executory  contracts.  We  have  already  referred,  at  length,  to 
Dr.  Hammond's  edition  of  Sandars's  Justinian,  and  other 
authorities,  on  this  point ;  and  have  also  quoted  the  state- 
ment of  Mr.  Austin  (which  was,  in  effect,  the  opinion  of 
Judge  Johnson  in  Fletcher  v.  Peck),  that  "where  a  so- 
called  contract  passes  an  estate,  *  *  *  it  is  to  that 
extent  not  a  contract,  but  a  conveyance,  though  it  may  be  a 
contract  to  some  other  extent,  and  considered  from  some 
other  aspect." 

No  matter  what  the  chief  justice  might  think  about  it. 


OBLIGATION  OF  CONTRACTS AMERICAN  DOCTRINE.       425 

the  true  and  unmistakable  American  doctrine  is,  that  the 
respective  States  did  not  take  their  powers,  by  inheritance 
or  otherwise,  from  the  crown  or  Parliament,  but  from  the 
people.  The  States  have  such  powers,  and  such  only,  as  the 
people  by  their  respective  State  Constitutions  have  given 
them.  The  Supreme  Court,  in  Lane  County  v.  Oregon  (7 
Wall.  76),  and  Texas  v.  White  (7  Wall.  700),  have  decided, 
'  as  the  foundation  idea  of  this  government,'  that ' '  the  Consti- 
tution, in  all  its  provisions,  looks  to  an  indestructible  union 
composed  of  indestructible  States  ;  "  and  that  "  without  the 
States  in  union  there  could  be  no  such  political  body  as  the 
United  States."  If  so,  how  can  a  State  constitutionally  snuff 
out  both  its  own  existence  and  that  of  the  United  States  by 
bartering  away,  by  legislative  enactments,  sovereign  powers, 
which  are  indispensable  to  existence  ? 

There  were  abundant  reasons  why  the  prohibition  should 
be  levelled  at  the  interference  with  executory  contracts. 
Marshall  limits  the  clause  to  contracts  which  respect  prop- 
erty. Looking  at  the  matter  from  the  standpoint  which  he 
undoubtedly  occupied  in  Fletcher  v.  Peck,  and  following  his 
own  reasoning  in  relation  to  executory  and  executed  con- 
tracts, why  should  he?  Marriage  is  a  contract.  At  com- 
mon law,  like  other  contracts,  it  could  not  exist  without  the 
consent  of  the  parties.  A  valid  marriage  merges  the  prom- 
ise to  marry  in  the  contract.  Marriage  embraces  both  an 
executed  and  an  executory  contract,  — one  party  proposes, 
and  the  other  accepts.  When  consummated,  it  is  an  executed 
contract.  The  parties  have  become  man  and  wife.  The 
' '  implied ' '  continuing  contract  is  that  they  are  to  live 
together  in  that  relation,  in  conformity  to  all  the  laws  of  the 
land  which  may  be  thereafter  enacted.  To  this  extent  like 
that  invented  by  Marshall,  it  is  purely  an  executory  con- 
tract. If  one  party  breaks  this  executory  contract,  the 
courts  can  release  the  other  party.  The  legislature  cannot 
authorize  divorce  for  a  past  act.  Marriage  is  not  a  matter 
of  mere  civil  institution.     It  might  as  well  be  said  tliat  a 


426  DARTMOUTH  COLLEGE  CAUSES. 

conveyance,  or  that  the  mass  of  commercial  transactions 
are  matters  of  civil  institution. 

Marriage  is  a  contract,  subject  to  such  prospective  legisla- 
tion as  may  provide  what  subsequent  breaches  of  the  execu- 
tory contract  shall  be  sufficient  grounds  for  discharging  the 
parties  from  its  obligation  ;  but  this  is  for  special  reasons  of 
State  policy  touching  the  great  interests  of  society,  in  main- 
taining the  power  of  regulating  the  terms  upon  which  so 
peculiar  and  important  a  contract  may  be  rescinded  or 
annulled. 

It  seems  to  us,  from  the  debates  in  the  Convention,  the 
views  of  Judge  Wilson,  and  those  of  other  eminent  authori- 
ties to  which  we  have  referred,  that  the  framers  of  the  Con- 
stitution had  in  mind  the  meaning  given  by  the  civil  law 
when  they  adopted  the  provision.  An  interpretation  which 
would  restrict  the  provision  to  executory  contracts  would 
be  much  more  natural  and  reasonable  than  the  other.  A 
comparison  of  the  passages  quoted  with  those  from  Story, 
to  which  we  have  already  adverted,  shows  how  Marshall 
shrank  from  the  logical  consequences  of  his  position  and 
reasoning. 

Prior  to  the  adoption  of  the  Constitution  of  1784,  in  New 
Hampshire,  decrees  for  divorce,  etc.,  had  always  been 
granted  by  the  Legislature.  That  Constitution  provided 
that  *'  ALL  causes  of  marriage,  divorce,  and  alimony,  and  all 
appeals  from  the  respective  judges  of  probate,  shall  be 
heard  and  tried  by  the  Superior  Court,  until  the  Legislature 
shall,  by  law,  make  other  provision." 

The  natural  inference  would  seem  to  be  that  such  decrees, 
taking  into  consideration  the  then  existing  law  as  to  prop- 
erty rights  of  men  and  their  wives,  might  affect  "  contracts  " 
*'  which  respect  property,  or  some  object  of  value,"  etc. 

Marshall  further  says  :  "  The  case  being  within  the  words 
of  the  rule,  must  be  within  its  operation  likewise,  unless 
there  be  something  in  the  literal  construction  so  obviously 
absurd,  or  mischievous,  or  repugnant  to  the  general  spirit 


EFFECT    OF    MARSHALL'S    "  CANON."  427 

of  the  instrument,  as  to  justify  those  who  expound  the  Con- 
stitution in  making  it  an  exception."  Placing  these  pas- 
sages beside  those  ah'eady  quoted,  but  one  construction  can 
be  put  upon  them.  His  canon  of  constitutional  interpreta- 
tion was,  that  the  term  "  contracts  "  was  used  in  a  limited 
and  not  in  a  general  sense  ;  but,  presumptively,  was  used 
in  a  general  and  not  in  a  limited  sense  until  the  contrary 
was  shown  "  beyond  a  doubt." 

We  have  already  commented  on  his  practical  test,  that 
those  who  claim  that  a  given  case  does  not  come  within  the 
limited  sense  of  the  term  must  show  that,  if  such  case  had 
been  brought  to  the  attention  of  the  fathers,  they  would  have 
"  varied  "  "  the  language  "  "  so  "  "  as  to  exclude  it,  or  it 
would  have  been  made  a  special  exception."  How  is  it  pos- 
sible to  show  such  an  exception,  or,  indeed,  any  other,  when 
the  Supreme  Court  itself  concedes  that  the  point  raised  in 
this  case  had  never  occurred  to  any  human  being  when  the 
Constitution  was  adopted?  A  grave  question  of  constitu- 
tional law  reduced  to  a  question  of  fact,  and  that  decided 
upon  conjecture  ! 

One  year  after  the  decision  in  Trustees  v.  Woodward, 
Marshall  delivered  the  opinion  of  the  court  in  O wings  v. 
Speed  (5  Wheat.  420).  The  case  was  simple  enough.  In 
1785,  Virginia  issued  a  patent  to  Bard  and  Owings  for  one 
thousand  acres  of  land  in  Bardstown.  In  1788,  the  Leffisla- 
ture  of  Virginia  passed  an  act  vesting  one  hundred  acres  ot 
this  tract  "  in  trustees,  to  be  laid  off  in  lots,  some  of  them 
to  be  given  to  settlers,  and  others  to  be  sold  for  the  benefit  of 
the  proprietors."  This  suit  was  brought  in  the  Circuit 
Court  of  the  United  States,  as  was  Fletcher  v.  Peck,  and 
three  of  the  College  causes,  and  involved,  as  Marshall 
claimed,  in  one  form,  the  same  question  as  Trustees  v.  Wood- 
ward. That  question  was,  whether  the  act  impaired  the  obli- 
gation of  contracts.     It  was  held  that  it  did  not. 

Marshall,  in  Trustees  v.  Woodward,  says  :  "According  to 
the  theory  of  the  British  Constitution,  their  Parliament  is 


428  DARTMOUTH  COLLEGE  CAUSES. 

omnipotent.  To  annul  corporate  rights  might  give  a  shock 
to  publick  opinion,  which  that  government  has  chosen  to 
avoid  ;  but  its  power  is  not  questioned.  Had  Parliament 
immediately  after  the  emanation  of  this  charter,  and  the 
execution  of  those  conveyances  which  followed  it,  annulled 
the  instrument,  so  that  the  living  donors  would  have  wit- 
nessed the  disappointment  of  their  hopes,  the  perfidy  of  the 
transaction  would  have  been  universally  acknowledged.  Yet 
then,  as  now,  the  donors  would  have  had  no  interest  in  the 
property  ;  then,  as  now,  those  who  might  be  students  would 
have  had  no  rights  to  be  violated  ;  then,  as  now,  it  might  be 
said  that  the  trustees,  in  whom  the  rights  of  all  were  com- 
bined, possessed  no  private,  individual,  beneficial  interest  in 
the  property  confided  to  their  protection.  Yet  the  contract 
would  at  that  time  have  been  deemed  sacred  by  all.  What 
has  since  occurred  to  strip  it  of  its  inviolability  ?  Circum- 
stances have  not  changed  it.  In  reason,  in  justice,  and  in 
law  it  is  now  what  it  was  in  1769.     *     *     * 

*'  By  the  Revolution,  the  duties,  as  well  as  the  powers,  of 
government  devolved  on  the  people  of  New  Hampshire,  It 
is  admitted  that  among  the  latter  tvas  comprehended  the  trans- 
cendant power  of  Parliament,  as  ivell  as  that  of  the  executive 
departvfient.  It  is  too  clear  to  require  the  support  of  argument 
that  all  contracts  and  rights  respecting  property  remained  un- 
changed by  the  Revolution.  The  obligations,  then,  which  were 
createdby  the  charter  of  Dartmouth  College,  were  the  same  in 
the  new  that  they  had  been  in  the  old  government.  The  power 
of  the  government  was  also  the  satne.  A  repeal  of  this  char- 
ter at  any  time  prior  to  the  adoption  of  the  present  Consti- 
tution of  the  United  States  would  have  been  an  extraordinary 
and  unprecedented  act  of  power,  but  one  which  could  have 
been  contested  only  by  the  restrictions  upon  the  Legislature 
to  be  found  in  the  Constitution  of  the  State.  But  the  Con- 
stitution of  the  United  States  has  imposed  this  additional 
limitation :  that  the  legislature  of  a  State  shall  pass  no  act 
'  impairing  the  obligation  of  contracts . '  " 


FLETCHER    V.  PECK    AND    OWINGS    V.  SPEED.  429 

It  is  clear,  from  this,  that  at  some  time  after  the  Revolu- 
tion the  Legislature  of  New  Hampshire  had  the  power  to 
pass  the  acts  in  question  or  to  annul  this  charter.  When  and 
how  was  it  lost? 

"Whether  or  not  Marshall,  with  the  rest  of  the  people  of 
Virginia,  lived  for  more  than,  half  a  century  under  a  Consti- 
tution which  discarded  what  he,  in  Fletcher  v.  Peck,  termed 
the  "  general  principles  which  are  common  to  our  free  insti- 
tutions," we  have  no  occasion  to  inquire.  If  this  act  was 
the  exercise  of  a  "judicial  "  power,  the  decision  in  Owings 
V.  Speed  cannot  be  reconciled  with  the  reasoning  in  Fletcher 
V.  Peck. 

We  are  not  aware  of  any  difference  in  the  moral  quality 
of  robbing  a  man  of  his  real  estate,  whether  done  by  the 
Virginia  or  any  other  Legislature.  The  act  the  constitu- 
tionality of  which  was  in  question  in  Owings  v.  Speed  took 
the  land  of  A.  from  him  and  vested  it  in  B.  The  acts  of  the 
Legislature  of  New  Hampshire,  the  constitutionality  of 
which  was  brought  in  review  in  Trustees  v.  Woodward, 
ousted  no  trustee,  and  took  away  none  of  their  property. 
They  were  left  as  they  stood  before,  but  others  were  added 
to  their  number.  We  are  unable  to  see  any  greater  "  per- 
fidy "  in  this  act  than  there  was  in  the  act  of  the  Virginia 
Legislature,  which  despoiled  the  owners  of  their  real  estate, 
and  of  all  right,  title,  and  interest  therein. 

Precisely  what  is  meant  by  the  passages  last  quoted  from 
Marshall's  opinion  in  Trustees  v.  Woodward,  taken  together, 
is  not  in  all  respects  clear.  Some  of  the  propositions,  it 
seems  to  us,  are  in  flat  contradiction  of  each  other.  Appar- 
ently, they  can  only  be  reconciled  upon  the  assumption  that 
Marshall  intended  to  adopt  in  fact,  while  avoiding  it  in  name, 
the  first  proposition  of  Mason  at  Exeter,  —  afterwards  en- 
forced by  Webster  at  Washington,  — that,  laying  the  State 
and  Federal  Constitutions  out  of  the  case,  the  acts  in  ques- 
tion were  void  because  judicial,  and  not  legislative,  in  their 
nature.     If  this  were  so,  we  are  unable  to  see  how  a  reser- 


430  DARTMOUTH  COLLEGE  CAUSES. 

vation  in  a  charter,  that  it  might  be  altered,  amended,  or 
repealed  at  pleasure,  could  change  the  nature  of  the  power, 
transform  what  was  in  essence  judicial  into  that  which  was 
legislative,  and  thereby,  in  effect,  confer  upon  Congress  and 
the  State  Legislatures  judicial  powers  which  the  respective 
Constitutions  have  denied  to  them. 

In  Crease  v.  Babcock  (23  Pick.  334),  the  Supreme  Court 
of  Massachusetts  held  that  "  a  reservation  by  the  Legisla- 
ture of  the  right  to  repeal  an  act  of  incorporation  for  a 
violation  of  the  charter,  or  other  default,  is  not  unconsti- 
tutional on  the  ground  of  being  a  reservation  of  judicial 
powers." 

The  distinction  suggested  is  not  warranted  by  any  of  the 
later  decisions  of  the  Supreme  Court,  ending  with  the  so- 
called  Granger  cases. 

In  the  turn-table  Legal  Tender  cases  (Hepburn  v.  Gris- 
wold,  8  Wall.  603  ;  Legal  Tender  cases,  12  Wall.  457),  the 
majority  of  the  Federal  Supreme  Court  first  held  that  Con- 
gress had  no  general  power,  under  the  Constitution,  to  pass 
a  law  "impairing  the  obligation  of  contracts;"  but  after- 
wards, the  minority,  now  transformed  into  a  majority,  held 
that  Congress  had  the  power.  It  seems  never  to  have 
occurred  to  any  of  the  judges  that  this  power  was  judicial, 
and  not  legislative  ;  and  the  same  is  true  of  the  subsequent 
decisions  upon  the  effect  of  the  reservation  clause. 

The  superstructure  falls  with  the  foundation.  Wherever 
the  power  exists,  —  and  the  principle  is  the  same  whether 
the  reservation  is  written  in  or  implied, — the  exercise  of 
that  power  is  everywhere  deemed  an  act  of  legislation. 

If  we  assume  that  a  charter  is  not  a  contract,  the  power 
to  alter,  amend,  or  repeal  —  it  being  legislative  —  must, 
as  a  fundamental  principle  of  British  law,  be  deemed,  by 
implication,  to  exist  in  every  charter.  This  charter,  then, 
in  legal  effect,  was  precisely  what  it  would  have  been  had 
the  reservation  clause  been  written  in.  If  the  charter  was 
a  contract,  the    same   result    follows    from   the    principles 


PARLIAMENT    AND    THE    CHARTER.  431 

underlying  the  decision  in  Ogden  v.  Saunders.  Parliament, 
then,  as  an  act  of  legislation,  had  the  power  to  alter,  amend, 
or  repeal  the  charter  at  pleasure,  and  the  people  of  New 
Hampshire  had  the  same  right  after  the  Revolution,  unless 
they  had  divested  themselves  of  that  power  by  the  State  or 
Federal  Constitution.  The  decision  of  the  State  court  was 
conclusive  in  this  action  that  the  State  Constitution  had  no 
such  effect.  The  only  remaining  question,  then,  was  whether 
the  Federal  Constitution,  by  the  obligation  clause,  had 
blotted  out  this  integral  part  of  the  charter  or  contract. 

If,  as  Marshall  says,  the  charter  was  a  contract,  and 
"  circumstances  have  not  changed  it,"  and,  "  in  reason,  in 
justice,  and  in  law,  it  is  now  what  it  was  in  1769,"  it  is 
simply  impossible  that  the  Federal  Constitution  should 
annul  such  an  important  provision  in  the  contract. 

It  would,  indeed,  be  singular  if  a  provision  of  the  Consti- 
tution, adopted  for  the  very  purpose  of  preventing  interfer- 
ence with  contracts,  should  subvert  the  purpose  of  its 
originators  by  striking  out,  in  effect,  a  vital  part  of  them. 

Those  who  believe  that  charters  are  not  contracts  in  the 
sense  of  the  Constitution,  or  that  the  purpose  of  its  framers 
was  inconsistent  with  the  retention  of  the  reserved  power, 
look  at  the  question  from  a  different  standpoint.  A  pointed 
illustration  of  the  latter  view  may  be  found  in  the  effect  of 
the  adoption  of  the  Constitution  on  the  following  provision 
of  the  charter  :  "And  we  do  further  will,  ordain,  and  direct 
that  the  President,  Trustees,  Professors,  Tutors,  and  all  such 
officers  as  shall  be  appointed,  for  the  public  instruction  and 
government  of  said  college,  shall,  before  they  undertake  the 
execution  of  their  offices  or  trusts,  or  within  one  year  after, 
take  the  oaths  and  subscribe  the  declaration  provided  by  an 
act  of  Parliament,  made  in  the  first  year  of  King  George 
the  First,  entitled  'An  act  for  the  further  security  of  his 
Majesty's  person  and  government,  and  the  succession  of 
the  crown  in  the  heirs  of  the  late  Princess  Sophia,  being 
protestants,  and  for  the  extinguishing  the  hopes  of  the  pre- 


432  DARTMOUTH  COLLEGE  CAUSES. 

tended  Prince  of  Wales,  and  his  open  and  secret  abettors,'  — 
that  is  to  say,  the  President  before  the  Governor  of  our 
said  Province  for  the  time  being,  or  by  one  by  him  empow- 
ered to  that  service,  or  by  the  President  of  our  said  Council, 
and  the  Trustees,  Professors,  Tutors,  and  other  officers, 
before  the  President  of  said  College  for  the  time  being, 
who  is  hereby  empowered  to  administer  the  same  ;  an  entry 
of  all  which  shall  be  made  in  the  records  of  said  College  " 
The  Legislature  of  New  Hampshire,  by  the  act  of  June 
27,  1816,  —  one  of  the  acts  complained  of, — attempted  to 
abroijate  this  oath  of  alleofiance  to  the  British  king  and  to 

o  o  o 

substitute  another  for  it.  The  seventh  section  of  that  act 
provided,  "  that  the  president  and  professors  of  the  Univer- 
sity,  before  entering  upon  the  duties  of  their  offices,  shall 
take  the  oath  to  support  the  Constitution  of  the  United 
States  and  of  this  State,  certificates  of  which  shall  be  filed  in 
the  office  of  the  secretary  of  this  State  within  sixty  days 
from  their  entering  on  their  offices  respectively." 

This,  we  have  seen,  in  the  mother  country,  was  a  public 
law  which  the  courts  were  bound  to  enforce,  and  which  was 
nowhere  deemed  any  infringement  upon  the  rights,  powers, 
and  privileges  of  such  corporations.  Why  should  it  not  be 
so  here?  Why  should  Dartmouth  College  be  more  pri- 
vate, have  more  rights,  than  any  so-called  private  elee- 
mosynary corporation  in  Great  Britain? 

This  is  one  of  the  acts  set  aside  by  Marshall  in  this  case, 
as  unconstitutional. 

The  chief  justice,  in  his  opinion,  makes  no  allusion  to  the 
oath  of  allegiance  required  by  the  charter,  though  the  broad 
terms  used  by  him  would  seem  to  cover  it.  If  the  charter 
was  in  1816-19  precisely  what  it  was  in  1769,  "inlaw," 
the  officers  were  still  bound  to  take  the  oath  of  allegiance 
to  the  British  crown.  It  is  hardly  possible,  however,  that 
Marshall  could  have  meant  this.  The  oath  required  was 
inconsistent  with  the  Constitution,  and,  therefore,  by  impli- 
cation, was  annulled  by  it. 


EFFECT  OF  ADOPTION  OF  CONSTITUTION  ON  CHARTER.       433 

Did  the  power  to  alter,  amend,  and  repeal  occupy  essen- 
tially the  same  position  ?     And  was  that  also  annulled  ? 

Marshall  lays  some  stress  upon  the  term  "  forever,"  etc. 
These  are  merely  formal  words,  like  those  common  alike 
in  all  instruments  of  this  character,  both  where  the  power 
is  expressly  reserved  and  where  it  is  not.  It  might  as  well 
be  argued  that  the  words,  "  of  our  special  grace,"  "  mere 
motion,"  etc.,  made  the  grant  a  "  gratuity,"  and  thus  put 
it  beyond  the  protection  of  the  obligation  clause.  They 
can  no  more  annul  the  power  where  it  is  a  part  of  the  con- 
tract or  charter  by  implication,  than  where  it  is  expressed. 

We  have  previously  shown  that  the  distinction  between 
public  and  private  corporations,  in  the  sense  in  which  those 
terms  were  used  by  Story  and  his  compeers,  was  unknown 
before  the  decision  in  Trustees  v.  Woodward. 

Unless  we  are  to  look,  contrary  to  the  view  of  Marshall 
in  Craig  v.  Missouri,  at  "names,  not  things,"  this  was  a 
university.  The  governor  who  granted  the  charter  so 
regarded  it,  and  proposed,  of  his  own  accord,  to  hedge  it 
about  with  the  jurisdiction  of  universities  in  England  with 
which  he  was  acquainted.  Dr.  Wheelock,  the  founder  of 
the  school  and  the  master-spirit  of  the  whole  undertaking, 
so  regarded  it,  and  acted  in  accordance  with  that  view  until 
his  death.  The  trustees,  who  were  the  corporation,  acted 
upon  this  understanding  almost  down  to  the  time  when  the 
controversy  broke  out.  They  voted  to  establish  professor- 
ships, examined  students,  and  conferred  upon  them  degrees 
as  officers  of  the  University,  and  in  a  variety  of  ways  held 
the  institution  out  to  the  world  as  such.  To-day  it  em- 
braces in  its  fold  the  agricultural  and  medical  colleges,  and 
the  academic,  scientific,  and  civil-engineering  departments, 
which  are,  in  fact,  colleges,  simply  bearing  a  "new  name 
for  an  old  thing." 

Even  the  charter  itself,  in  a  variety  of  forms,  uses  the 
universities  in  the  mother  country  as  the  measure  or  standard 
of  the  "  power  and  authority  "  conferred  by  it.     It  puts  the 

28 


434  DARTMOUTH  COLLEGE  CAUSES. 

"  degrees  "  on  the  same  footing  "  as  are  usually  granted  in 
either  of  the  universities  or  any  other  college  in  our  realm 
of  Great  Britain . ' '  When  the  charter  speaks  of  ' '  either 
of  the  universities,"  it  refers  directly  to  the  Universities 
of  Cambridge  and  Oxford.     Of  this  there  is  no  doubt. 

Moor's  Indian  Charity-School  had  "  alms,  free  bounty,  to 
be  distributed,"  and  so  have  some,  and  perhaps  all,  of  these 
colleges  ;  but  the  University,  as  such,  none.  'Judge  Smith, 
in  his  argument,  conceded  that,  if  a  university,  it  vras  "  upon 
the  principles  of  the  common  law  a  civil,  and  not  an  '  elee- 
mosynary, corporation.'     *     *     * 

"  But  there  is  another  division,  proper  to  be  stated  at 
greater  length,  I  mean  of  civil  and  eleemosynary  corpora- 
tions. We  have  both  sorts.  Our  civil  corporations  are 
created  for  government,  and  for  '  the  carrying  on  of  divers 
special  purposes.'  Our  counties,  towns,  parishes,  school- 
districts,  &c.,  are  civil  corporations  for  government,  and  our 
banking,  insurance  and  turnpike  companies  are  civil  corpora- 
tions for  particular  purposes  —  in  no  way  connected  with 
charity.  In  England  the  general  corporate  bodies  of  the 
Universities  of  Oxford  and  Cambridge  fall  under  the  head  of 
civil  corporations  ;  because  merely  for  government ;  not  for 
dispensing  alms,  but  for  governing  the  particular  colleges 
lohich  dispense  them."  Even  President  Brown,  who  had 
lived  for  years  in  the  atmosphere  of  these  great  lawyers, 
and  absorbed  their  views  of  the  legal  phases  of  the  case  as 
a  sponge  does  water,  says  this  was  the  "  great  point  of  the 
defence,"  "the  latter  [colleges]  being  admitted  to  be 
charities,  and  the  former  [universities]  not,  but  designed  for 
the  purposes  of  regulation,  government,  &c."  He  ques- 
tioned the  fact,  but  not  that  the  law  followed  the  fact.  If 
the  corporation  was  a  university,  why  could  not  the  State 
provide  for  its  "  regulation,  government,  &c." 

Marshall  makes  no  allusion  to  these  provisions  in  relation 
to  the  universities.  There  were  obvious  reasons  for  this 
omission.     Each  of  the   universities  was  little  else  than  a 


CHARTEE  AND  UNIVERSITY GRANGER  CASES.  435 

plexus  of  political  privileges, — an  empire  within  an  em- 
pire,— including  the  right  to  seats  in  Parliament.  If  they 
were  not  "  public  corporations,"  if  such  things  existed,  it 
was  next  to  impossible  to  find  them.  The  attempt  to  do  so 
might  have  taxed  even  the  marvellous  inventive  genius  of 
Marshall  till  the  strain  stranded  its  thews. 

The  Granger  cases  mark  an  era  in  the  judicial  history  of 
the  Union. 

The  precise  points  actually  decided  in  these  cases  are  of 
little  importance,  as  compared  with  the  significance  of  the 
reasoning  on  which  they  rest,  and  the  consequences  which 
must  flow  from  them  in  the  future. 

They  show  that  the  domination  of  the  East  in  the  Supreme 
Court,  as  well  as  in  other  dei)artments  of  the  government, 
has  become  a  matter  of  history,  and  that  the  great  West  and 
South-west  hold  the  future  destinies  of  the  country.  East 
ern  people  are  proverbially  slow  about  some  things.  They 
learn  slowly  what  they  do  not  wish  to  know.  Any  other 
people  would  have  appreciated  at  once  the  significance  of 
late  decisions  of  the  Supreme  Court,  in  a  class  of  municipal- 
bond  tax  cases,  to  the  eflect  that  the  judgments  of  the  whole 
retinue  of  Federal  courts,  with  the  Supreme  Court  at  their 
head,  in  causes  in  Avhich  they  had  jurisdiction,  were  not 
binding,  but  merely  advisory  to  a  meeting  of  municipal 
voters,  and  that  the  last  was  practically  the  tribunal  o^  dernier 
ressort. 

If  the  Supreme  Court  erred  in  the  Granger  cases,  they 
did  so  having  all  the  light  that  could  be  thrown  upon  the 
subject  by  the  ablest  men  in  the  profession,  for  before  them 
were  the  opinions  and  arguments  of  Benjamin  R.  Curtis, 
William  M.  Evarts,  E.  Eockwood  Hoar,  Matt.  H.  Carpenter, 
Judge  Lawrence,  Judge  Dixon,  the  Sloans,  Mr.  Cook,  Mr. 
Stoughton,  Mr.  Carey,  Judge  Ryan,  and  others. 

In  these  cases.  Chief  Justice  Waite,  speaking  for  the 
majority  of  the  court,  nominally  recognizes  the  authority  of 
Trustees  v.  Woodward.     Chief  Justice  Taney  tacitly  did  the 


4«36  DARTMOUTH  COLLEGE  CAUSES. 

same  in  Charles  River  Bridge  v.  Warren  Bridge ;  but  no 
lawyer  ever  doubted  that  Justice  Grier  —  speaking  for  him- 
self, Mr.  Justice  Field,  and  Chief  Justice  Chase  —  reaffirmed 
the  opinion  of  Taney,  when  he  said,  in  his  opinion  in  the 
Binghampton  Bridge  case:  "But,  assuming  a  power  for 
one  legislature  to  restrain  the  power  of  future  legislatures, 
those  who  assert  that  it  has  been  exercised  should  prove 
their^  assertion  heyond  a  doubt.  Such  intention  must  be 
clearly  expressed  in  the  letter  of  the  statute,  and  not  left 
to  be  discovered  by  astute  construction  and  inferences. 
Although  an  act  of  incorporation  may  be  called  a  contract, 
the  rules  of  construction  applied  to  it  are  admitted  to  he  the 
reverse  of  those  applied  to  other  contracts." 

The  opinion  of  Taney  in  the  Bridge  case  was,  as  Story 
felt,  a  great  departure  from  the  principles  underlying  the 
opinion  of  Marshall  in  Fletcher  v.  Peck  and  in  the  College 
case.  But  the  opinions  in  the  Granger  cases  (94  U.  S. 
113-187)  are  in  eflect  a  far  greater  one.  No  considerate 
man  can  believe  for  a  moment  that  such  decisions  could 
have  been  rendered  by  Judge  Marshall's  court  after  the 
decision  in  the  College  case.  It  is  simply  impossible  to 
reconcile  the  two,  unless  the  decision  in  Trustees  v.  Wood- 
ward is  to  be  limited  to  "  eleemosynary  corporations,"  — 
a  distinction  ignored  by  all  the  cases. 

Some  of  the  opinions  of  the  present  chief  justice  are  brief, 
terse,  and  compact  in  fibre,  while  others  are  diffuse  and  discur- 
sive, but  marked  with  originality.  The  originality  of  the  use 
made  by  him  of  the  sayings  of  Lord  Hale  and  others,  though 
reminding  one  of  a  speech  of  Colonel  Barre,  is  worthy 
the  genius  of  Marshall  in  his  best  estate.  That  the  "  use 
was  public"  was  conceded  by  the  counsel  for  the  plain- 
tiffs, in  a  variety  of  forms,  in  the  College  case.  Mr.  Hopkin- 
son  said,  in  his  brief:  "We  must  also  look  to  its  origin. 
It  is  not  enough  that  it  is  in  fact  beneficial  to  the  public  — 
a  manufactory  —  canal  —  road  —  made  by  an  individual  for 
public  use,  with  express  stipulations. 


OPINIONS  OF  CHIEF  JUSTICE  WAITE PUBLIC  USE.       437 

' '  The  public  have  an  interest  in  everything  done  by  the 
citizens.     Kino^  can't  touch  a  collcs-e  charter." 

In  Planters'  Bank  v.  Sharp  (6  How.  327),  the  Supreme 
Court  says  :  ' '  One  of  the  tests  that  a  contract  has  been  im- 
paired is,  that  its  value  has,  by  legislation,  been  diminished. 
It  is  not,  by  the  Constitution,  to  be  impaired  at  all.  This  is 
not  a  question  of  degree,  or  manner,  or  cause,  but  of  en- 
croaching in  any  respect  upon  its  obligation, — dispensing 
with  any  part  of  its  force." 

The  chief  justice  makes  no  attempt  to  attack  the  judg- 
ment or  to  demolish  the  opinions  in  the  College  case,  but 
to  undermine  them,  and  pulverize  their  foundation  as  with 
dualin,  by  adopting  the  theory  of  "  public  use,"  etc., 
pressed  upon  the  judges  but  discarded  by  them  in  that  case. 
If  the  decisions  in  Trustees  v.  Woodward  and  Bank  v.  Sharp 
are  to  be  deemed  correct  exjiositions  of  the  Constitution, 
Judges  Field  and  Strong  may  well  say,  as  they  did  in  their 
dissenting  opinions,  "  If  this  be  sound  law,  if  there  be  no 
protection,  either  in  the  principles  upon  which  our  republi- 
can government  is  founded,  or  in  the  prohibitions  of  the 
Constitution  against  such  invasion  of  private  rights,  all 
property  and  all  business  in  the  State  are  held  at  the  mercy 
of  a  majority  of  its  Legislature.  The  public  has  no  greater 
interest  in  the  use  of  buildings  for  the  storage  of  grain,  than 
it  has  in  the  use  of  buildings  for  the  residences  of  families, 
nor,  indeed,  anj'^  thing  like  so  great  an  interest ;  and, 
according  to  the  doctrine  announced,  the  Legislature  may 
fix  the  rent  of  all  tenements  used  for  residences,  without 
reference  to  the  cost  of  their  erection.  If  the  owner  does 
not  like  the  rates  prescribed,  he  may  cease  renting  his 
houses.  He  has  granted  to  the  public,  saj^s  the  court,  an 
interest  in  the  use  of  the  buildings,  and  '  he  may  withdraw 
his  grant  by  discontinuing  the  use  ;  but  so  long  as  he  main- 
tains the  use,  he  must  submit  to  the  control.'  The  public 
is  interested  in  the  manufacture  of  cotton,  woollen,  and 
silken  fabrics,  in  the  construction  of  machinery,  in  the  print- 


438  DARTMOUTH  COLLEGE  CAUSES. 

ing  and  publication  of  books  and  periodicals,  and  in  the 
making  of  utensils  of  every  variety,  useful  and  ornamental ; 
indeed  there  is  hardly  an  enterprise  or  business  engaging 
the  attention  and  labor  of  any  considerable  portion  of  the 
community,  in  which  the  public  has  not  an  interest  in  the 
sense  in  which  that  term  is  used  by  the  court  in  its  opinion  ; 
and  the  doctrine  which  allows  the  legislature  to  interfere 
with  and  regulate  the  charges  which  the  owners  of  property 
thus  emploj^ed  shall  make  for  its  use,  that  is,  the  rates 
at  which  all  these  different  Idnds  of  business  shall  be  carried 
on,  has  never  before  been  asserted,  so  far  as  I  am  aware,  by 
any  judicial  tribunal  in  the  United  States. 

"  The  doctrine  of  the  State  court,  that  no  one  is  deprived 
of  his  propert}^  within  the  meaning  of  the  constitutional 
inhibition,  so  long  as  he  retains  its  title  and  possession,  and 
the  doctrine  of  this  court,  that  whenever  one's  property  is 
used  in  such  a  manner  as  to  aifect  the  community  at  large, 
it  becomes  by  that  fact  clothed  with  a  public  interest,  and 
ceases  to  he  juris  2)^'ivati  only,  appear  to  me  to  destroy,  for 
all  useful  purposes,  the  efficacy  of  the  constitutional  guar- 
anty. All  that  is  beneficial  in  property  arises  from  its  use, 
and  the  fruits  of  that  use  ;  and  whatever  deprives  a  person 
of  them,  deprives  him  of  all  that  is  desirable  or  valuable  in 
the  title  and  possession.  If  the  constitutional  guaranty 
extends  no  further  than  to  prevent  a  deprivation  of  title  and 
possession,  and  allows  a  deprivation  of  use,  and  the  fruits  of 
that  use,  it  does  not  merit  the  encomiums  it  has  received." 
(Munn  V.  Illinois,  94  U.  S.  141.) 

"  So  long  as  that  decision  remains,  it  will  be  a  waste  of 
words  to  discuss  the  questions  argued  by  counsel  in  these 
cases.  That  decision,  in  its  wide  sweep,  practically  destroys 
all  the  guaranties  of  the  Constitution  and  of  the  common 
law  invoked  by  counsel  for  the  protection  of  the  rights  of 
the  railroad  companies.  Of  what  avail  is  the  constitutional 
provision  that  no  State  shall  deprive  any  person  of  his  prop- 
erty except  by  due  process  of  law,  if  the  State  can,  by  fixing 


DISSKNTCa;    OPINIONS    OF    FIELD    AND    STRONG.  439 

the  compensation  which  he  may  receive  for  its  use,  take  from 
him  all  that  is  valuable  in  the  propert}^?  To  what  purpose 
can  the  constitutional  prohibition  upon  the  State  against 
impairing  the  obligation  of  contracts  be  invoked,  if  the 
State  can,  in  the  face  of  a  charter  authorizing  a  company  to 
charge  reasonable  rates,  prescribe  what  rates  shall  be  deemed 
reasonable  for  services  rendered  ?  That  decision  will  justify 
the  legislature  in  fixing  the  price  of  all  articles  and  the  com- 
pensation for  all  services.  It  sanctions  intermeddling  with 
all  business  and  pursuits  and  property  in  the  community, 
leaving  the  use  and  enjoyment  of  property,  and  the  compen- 
sation for  its  use,  to  the  discretion  of  the  legislature." 
(Stone  V.  Wisconsin,  94  U.  S.  18(3,  187.) 

This  decision  was  not  put  upon  the  ground  that  the  owners 
of  the  elevators,  as  private  individuals,  stand  as  they  would 
if,  in  the  same  capacity,  they  had  owned  the  Suspension 
Bridge,  —  the  connecting  link  between  two  great  public  thor- 
oughfares. 

That  artificial  —  in  the  respects  now  under  discussion  — 
have,  at  most,  no  greater  rights  than  natural  persons,  is  one 
of  the  principles  underlying  this  decision. 

If  the  court  can  look  at  the  facts  in  the  case  of  private 
individuals,  take  judicial  notice  of  them,  in  order  to  de- 
termine whether  any  ' '  employment  "  or  "  business  ' '  has 
been  *'  clothed  with  a  public  interest,"  it  can  do  so  in  the 
case  of  corporations.  If  they  could  do  it  in  Munn  v. 
Illinois  and  Stone  v.  Wisconsin,  they  could  do  it  in  Trus- 
tees V.  Woodward. 

What  were  the  purposes  for  which  Dartmouth  College  was 
incorporated,  and  what  were  the  facts?  The  charter  thus 
sets  forth  the  purposes :  — 

'"■  Know  ye  therefore,  That  We,  considering  the  premises, 
and  being  willing  to  encourage  the  laudable  and  charitable  design 
of  spreading  Christian  knowledge  among  the  savages  of  our 
American  wilderness,  and  also  tiiat  the  best  means  of  education 
be  established  in  our  Province  of  New  Hampshire,  for  the  benefit 


440  DARTMOUTH  COLLEGE  CAUSES. 

of  said  Province,  do  *  *  *  will,  ordain,  grant,  and  consti- 
tute that  there  be  a  College  erected  in  our  said  Province  of  New 
Hampshire,  by  the  name  of  Dartmouth  College,  for  the  educa- 
tion and  instruction  of  youth  of  the  Indian  tribes  in  this  land  in 
reading,  writing,  and  all  parts  of  learning  which  shall  appear 
necessary  and  expedient  for  civilizing  and  christianizing  children 
of  pagans,  as  well  as  in  all  liberal  arts  and  sciences,  and  also  of 
English  youth  and  any  others." 

The  doors  of  the  College  have  been  open  for  more  than  a 
hundred  years  to  all  who  sought  its  facilities.  The  College 
prescribed  the  terms  on  which  they  were  admitted,  fixed  the 
compensation,  and  gave  notice  thereof  to  the  world.  Its 
graduates  have  gone  forth  by  thousands  to  take  their  places 
in  all  the  professions  and  walks  of  life  ;  the  artificial  power 
acquired  by  them  there  has  been  so  much  capital ;  the  influ- 
ence of  the  institution  has  been  felt  in  every  department  and 
throughout  the  Union.  In  view  of  these  facts,  well  might 
Chief  Justice  Richardson  say  in  this  cause,  as  he  did  (IN. 
H,  119),  "These  great  purposes  are  surely,  if  anything 
can  be,  matters  of  public  concern."  Judge  Marshall  goes 
further.  He  says  :  ' '  The  particular  interests  of  New  Hamp- 
shire never  entered  into  the  mind  of  the  donors,  never  con- 
stituted a  motive  for  their  donation.  The  propagation  of 
the  Christian  religion  among  the  savages,  and  the  dissemina- 
tion of  useful  knowledge  among  the  youth  of  the  country, 
were  the  avowed  and  sole  objects  of  their  contributions.  In 
these  New  Hampshire  would  participate  ;  but  nothing  par- 
ticular or  exclusive  was  intended  for  her.  Even  the  site  of 
the  College  was  selected,  not  for  the  sake  of  New  Hampshire, 
but  because  it  was  *  most  subservient  to  the  great  ends  in 
view,'  and  because  liberal  donations  of  land  were  ofiered  by 
the  proprietors  on  condition  that  the  institution  should  be 
there  established.  The  real  advantages  from  the  location  of 
the  College  are,  perhaps,  not  less  considerable  to  those  on 
the  west  than  to  those  on  the  east  side  of  Connecticut  river. 
The  clause  which  constitutes  the  incorporation  and  expresses 


PURPOSE  OF  INCORPORATION A  "PUBLIC  USE."        441 

the  object  for  which  it  was  made  declares  those  objects  to  be 
the  instruction  of  the  Indians,  '  and  also  of  English  youth 
and  any  others.'  So  that  the  objects  of  the  contributors 
and  the  incorporating  act  were  the  same  —  the  promotion  of 
Christianity  and  of  education  generally ;  not  the  interests 
of  New  Hampshire  particularly." 

As  we  have  already  seen,  even  Mr.  Hopkinson,  counsel 
for  the  College,  declared  it  to  be  a  ^^ public  institution.''' 

The  College  was  located  on  the  borders  of  two  States  : 
on  the  banks  of  what  was,  to  some  extent,  a  natural 
highway,  and  where,  at  the  time  of  its  location,  it  was 
supposed  that  the  great  artificial  lines  of  travel  would  con- 
verge, and  where  it  was  hoped  would  be  located  the  future 
capital  of  a  State. 

The  elevators  were  located  at  Chicago,  which,  partially 
in  consequence  of  natural  facilities,  but  to  a  far  greater 
extent  in  consequence  of  artificial  ones,  has  become  a  great 
focal  point  for  the  reception  and  transhipment  of  grain. 
The  doors  of  these  warehouses  have  been  open  for  the 
transaction  of  this  business,  in  its  present  form,  only  about 
twenty  years. 

The  College  has  received  students,  and  sent  forth  educated 
men  with  their  diplomas  ;  the  warehouses  have  received 
grain,  and  issued  it  under  certificates  of  deposit.  The  Col- 
lege takes  toll  in  the  nature  of  pay  for  services  rendered  ; 
so  do  the  warehouses.  If  "  avoirdupois  "  is  to  be  the  test, 
the  warehouses  have  the  advantage  ;  if  brain  sweat  is  to  be 
the  test,  the  College  leads. 

The  use  in  one  case  is  public  ;  how  can  any  man  say  it  is 
not  so  in  the  other?  It  seems  to  us  that  Chief  Justice 
Waite  reechoes  the  proposition  of  Lord  Hardwicke,  enforced 
by  Sullivan  in  his  argument,  and  enlarges  its  scope.  He 
says  :  "  Property  does  become  clothed  with  a  public  interest 
when  used  in  a  manner  to  make  it  of  public  consequence 
and  afiect  the  community  at  large.  When,  therefore,  one 
devotes  his  property  to  a  use  in  which  the  public  has  an 
interest,  he,  in   effect,  grants   to  the  public  an  intevost  in 


442  DARTMOUTH  COLLEGE  CAUSES. 

that  use^  and  must  submit  to  be  controlled  by  the  public, 
for  the  common  good,  to  the  extent  of  the  interest  he  has 
thus  created.  *  *  *  But  we  need  not  go  further. 
Enough  has  already  been  said,  to  show  that  when  private 
property  is  devoted  to  a  public  use  it  is  subject  to  public 
regulation.  It  remains  only  to  ascertain  whether  the  ware- 
houses of  these  plaintiffs  in  error,  and  the  business  which 
is  carried  on  there,  come  within  the  operation  of  this  prin- 
ciple. For  this  purpose  we  accept,  as  true,  the  statements ' 
of  fact  contained  in  the  elaborate  brief  of  one  of  the  counsel 
of  the  plaintiffs  in  error."  The  brief  referred  to  summar- 
ized the  magnitude  of  the  warehouse  business  at  Chicago. 

These  principles  are  far-reaching  in  their  consequences . 
As  applied  to  corporations,  in  the  absence  of  a  positive 
prohibition,  the  nature  of  the  business  or  employment  "  as 
public,"  or  as  affecting  public  interests,  enters  into  and 
permeates  the  charter,  leavens  the  lump,  and,  in  effect, 
transforms  it  pro  hac  vice,  into  what,  since  Trustees  v. 
Woodward,  is  commonly  termed  a  public  corporation.  As 
we  have  already  shown,  the  ablest  courts  and  jurists  have 
differed  widely  as  to  the  extent  of  the  power  which  legisla- 
tive bodies  may  exercise  over  such  corporations.  We  have 
before  sugojested  what  we  reo-ard  as  the  true  rule. 

To  carry  out  the  principles  laid  down  by  them,  it  seems 
to  us  that  the  Supreme  Court  must  hold  that  legislatures 
may,  in  general,  authorize  the  taking  of  the  private  prop- 
erty of  individuals  for  grain-elevators,  hack-stands,  bakers' 
ovens,  and  whatever  else  the  court  may  regard  as  *'  public  " 
employments.  The  test  of  a  public  use  seems  to  be  what 
is  beneficial  to  the  public,  or  what  legislative  bodies  may 
deem  advantageous  to  many  people. 

The  Constitution  imposes  a  restraint  upon  the  exercise  of 
this  power.  What  the  real  or  constructive  public  may  take 
in  this  way,  they  must  pay  for. 

But  what  is  termed  the  power  of  "regulation"  is  far 
more  important  than  that  of  eminent  domain,  and  especially 
when  apiilied  to  corporations. 


POWER    OF    "regulation" THURMAN    BILL.  443 

Whenever  the  nature  of  the  employment  or  business 
enters  into  a  charter,  the  power  of  regulation  goes  with  it. 
So  far  as  the  court  has  yet  gone,  the  real  or  constructive  pub- 
lic may  not  take  the  property  itself  W'ithout  pajnng  for  it ; 
but,  under  the  guise  of  "  regulation,"  this  public  may  take 
the  beneficial  use  of  it  by  paying  a  nominal  price,  such  as 
the  public,  through  its  legislative  bodies,  see  fit  to  say  is 
reasonable. 

In  The  Boston  Beer  Company  v.  Massachusetts  (115 
Mass.  153),  the  plaintiffs  claimed  that,  under  their  charter 
of  February  1,  1827,  incorporating  them  *'  for  the  purpose 
of  manufacturing  malt  liquors  in  all  their  varieties,  etc.,  in 
Boston,"  etc.,  which  the  Legislature  had  no  power  to  alter, 
modify,  or  repeal,  they  had  the  right  to  keep  for  sale  the 
products  of  their  manufacture,  notwithstanding  the  pro- 
visions of  the  statute  of  1869  prohibiting  the  manufacture 
of  malt  liquors  to  be  sold  in  the  State,  and  brewing  and 
keeping  them  for  sale,  under  the  penalties  of  fine,  imprison- 
ment, and  forfeiture  of  the  liquors  to  the  State,  because, 
if  otherwise,  the  State  could  prohibit  them  from  carrying 
on  the  very  business  for  which  they  were  chartered.  The 
State  court  held  that  the  Legislature  had  the  constitutional 
right  "  to  destroy  the  uses  which  were  previously  enjoyed, 
or  the  property  so  made  the  subject  of  legislation  ; ' '  and  that 
this  would  in  nowise  impair  the  obligation  of  the  contract. 

The  Supreme  Court  of  the  United  States  has  recently 
affirmed  this  judgment,  as  it  also  has  the  constitutionality 
of  the  Thurman  bill. 

Since  the  decision  in  the  Granger  cases,  in  New  Jersey  v. 
Yard  (95  U.  S.  104),  Farrington  v.  Tennessee  (95  U.  S. 
679),  Murray  v.  Charleston  (96  U.  S.  432),  Edward  v. 
Kearzey  (96  U.  S.  595),  and  other  cases,  a  portion  of  the 
judges  have  attempted  to  bolster  up  some  of  the  most  ol)- 
jectionable  features  in  the  decision  in  the  College  case. 

The  Supreme  Court  has,  however,  made  some  progi'ess, 
so  that  we  are  not  entirely  -without  hope  that  the  right  will 


444  DARTMOUTH  COLLEGE  CAUSES. 

ultimately  prevail.  In  New  Jersey  v.  Yard,  Mr.  Justice  Mil- 
ler says  :  "  The  writer  of  this  opinion  has  always  believed, 
and  believes  now,  that  one  legislature  of  a  State  has  no 
power  to  bargain  away  the  right  of  any  succeeding  legis- 
lature to  levy  taxes  in  as  full  a  manner  as  the  Constitution 
will  permit."  This  is  refreshing.  Why  does  not  the  same 
principle  apply  to  the  power  of  the  State  over  its  judicial 
process  ;  to  the  right  of  eminent  domain  ;  to  the  police 
power,  which  has  suddenly  assumed  such  enormous  propor- 
tions ;  and,  in  short,  to  every  act  whereby  the  legislature 
attempts  to  divest  the  State  of  any  attribute  of  sovereignty  ? 

In  Fletcher  v.  Peck,  the  court  decided  that  the  States 
were  prohibited  by  the  obligation  clause  from  *'  impairing" 
any  contract,  including  legislative  grants ;  in  Trustees  v. 
Woodward,  that  the  clause  referred  only  to  contracts  in 
respect  to  property  ;  in  the  Bridge  case,  that,  presumptively, 
it  did  not  refer  to  royal  or  legislative  grants  ;  in  Ogden  v. 
Saunders,  that  it  had  no  reference  to  prospective  contracts  ; 
in  the  Granger  cases,  that  the  legislature  was  only  pro- 
hibited from  interfering  with  the  formal  title  and  nominal 
use  of  the  ofrantees  under  these  charters ;  and  in  the  Beer 
case,  if  we  are  correctly  ad\'ised  as  to  its  import,  that  the 
legislature  may  extinguish  the  charter  and  the  rights  of  the 
grantees  by  prohibiting  or  destroying  that  use,  if  deemed 
detrimental  to  the  public  morals. 

This  zigzag  line  is  the  natural  result  of  pushing  the  inter- 
pretation of  the  clause  at  first  beyond  its  normal  meaning, 
in  disregard  of  the  principles  of  legal  gravitation. 

The  Supreme  Court  may,  for  the  time  being,  hesitate  and 
fluctuate  as  in  the  South  Ottawa  Bond  case,  but  these  rules 
must  govern  until,  as  it  has  already  done  in  relation  to  admi- 
ralty jurisdiction,  it  turns  its  eye  to  the  pole-star  of  legal 
truth,  and,  in  spite  of  adverse  winds  and  baffling  currents, 
sails  out  into  deep  water  and  ignores  the  pernicious  princi- 
ples supposed  to  have  been  established  in  Trustees  v.  Wood- 
ward. 


INDEX. 


ACT  OF  JUNE  27,  1816, 

application  to  court  as  to  authority  of  Legislature  to  pass,  118,  119. 

opinion  of  court  in  respect  to,  119-121. 

referred  to,  1,  9,  11,  15,  47,  78,  109,  110,  112,  114,  118-122,  125,  126,  130, 
131,  133,  135,  138,  139,  142,  144,  157-159,  188,  196-198,  432. 
(See  Trtjstbes  ;  Overseers.) 
ADAMS,  JOHN, 

genius  of,  319. 

nominal  head  of  party,  382. 

opposition  of  Hamilton  to,  382,  383. 

relations  with  Jefferson,  383,  387. 

troubles  in  the  cabinet,  382. 
ALBANY  CONFERENCES, 

who  took  part  in ;  when  held,  253,  254. 

letters  in  relation  to;  effect  of;  "N.  Y."  "gained,"  264-272. 
ALLEN,  WILLIAM, 

president  of  Dartmouth  University,  136. 

president  of  Bowdoin,  351,  352. 

deposed ;  brings  assumpsit  against  the  treasurer,  352. 

result  of  suit,  353. 

last  days  of  his  administration,  386. 

son-in-law  and  confidant  of  Dr.  John  Wheelock,  353. 
ALLEN  V.  COLLEGE, 

cause  of  action,  3,  4. 

entered  at  Plymouth,  3,  4. 

old  trustees  consider  advisability  of  contesting  the  Wheelock  claim; 
correspondence  in  relation  to,  298-301. 

judgment  in,  205,  301. 

execution  issues,  301. 

payment  delayed,  301. 

when  adjusted,  301. 
ARGUMENTS, 

at  Haverhill,  148. 

of  Marsh,  155-166. 

of  Parsons,  168-176. 

of  counsel  at  Exeter,  174-185,  434. 

at  Washington,  200,  201,  207,  208,  229,  232,  237,  295-297,  422. 

(445) 


446  INDEX. 

AKGUMENTS  —  Continued. 

Judge  Parker's  views  in  relation  to,  250,  251. 

Judge  Story  to  Mason  in  relation  to,  246. 
(See  Rearguments.) 
AUSTIN,  JAMES, 

his  view  of  terms  "obligation,"  "contract,"  "conveyance,"  225,  226. 

BANK, 

United  States ;  incorporation  of ;  capital  of,  356. 

cases,  356,  357. 
BARTLETT,  ICHABOD, 

sketch  of,  154. 

states  position  of  Mason  and  Smith,  182. 

argument  at  Exeter,  182-186. 

objects  to  special  verdict  framed  by  Judge  Smith,  193. 

frames  one  himself,  193-199. 

counsel  for  old  trustees  reject  it,  193,  199. 

fails  to  sign  or  indorse  the  verdict  framed  by  Smith  and  agreed  to  by 
Sullivan,  195. 
BELL,  SAMUEL, 

sketch  of,  149. 

judge  of  the  Superior  Court  of  New  Hampshire  and  trustee  of  Dart- 
mouth College,  149. 

unites  with  Chief  Justice  Richardson  in  opinions,  119-121,  148-151. 

hears  part  of  Holmes's  speech  at  Washington,  282,  233. 

BOWDOIN  COLLEGE, 

estublishnient  of ;  charter;  grants  to,  361. 

Dr.  Allen  made  president  of,  351,  352. 

legislative  acts  in  relation  to,  352. 

case  of  Allen  v.  McKeen,  352-355. 
BRACTON, 

his  views  as  to  meaning  of  term  "  obligation,"  227. 
BROWN,  FRANCIS, 

succeeds  Wheelock  ;  sketch  of,  101. 

charges  against,  134. 

defends  position  of  old  trustees  in  a  public  address,  136,  137. 

in  Boston  "  and  elsewhere,"  293,  294. 

and  at  the  Albany  conferences,  264-271. 
CHARLES  RIVER  BRIDGE  CASE, 

history  of  it ;  opinions  by  Story,  367-369. 

decision  is  right  for  the  same  reason  that  opinion  in  CJollege  case  is 
wrong,  370. 
CHARTER, 

attempt  to  obtain  a  charter  for  an  academy  or  college  by  Congrega- 
tionalists;  Wheelock  makes  no  application  for  a;  board  of  trust 
opposed  to,  for  school,  27. 

drafted  by  Wheelock,  34.   ■ 


INDEX.  447 

CHAETER—  Continued. 

amended  by  Judge  Parker,  34,  35. 

changes  in  draft  of,  explained ;  Wheelock's  draft  of,  still  in   existence, 
35,  36. 

negotiations  in  relation  to,  27-36. 

jurisdiction  of,  restricted  to  college,  39,  41. 

college ;  when  issued  and  recorded,  52. 

granted,  not  by  king,  but  by  Gov.  John  Wentwortb,  58. 

royal  commission  gives  him  no  power  to  make  such  grant,  53. 

prohibits  religious  discriminations,  66. 

oath  required  by,  of  trustees  and  others,  106,  110,  432. 

defects  in,  alleged  cause  of  difficulties,  107. 

act  amending,  passed,  109. 

college,  and  laws  of  Great  Britain ;  was  it  a  contract,  398. 

representations  in  preamble  to,  presented  to  Gov.  Wentworth,  414-416. 

was  it  a  contract  in  a  constitutional  sense,  471-473. 
(See  Moor's   Indian   Chabity-School ;    Dartmouth    College;     Conti- 

YNENTL  Congress.) 
CIRCUIT  COURT, 

for  District  of  New  Hampshire,  held  at  Portsmouth  and  Exeter,  May  1 
and  October  1,  respectively,  3. 

suits  in,  instituted  by  direction  of  Webster ;  his  reasons,  to  whom  con- 
fided, 4,  5. 

causes  transferred  from ;  outside  pressure,  201. 

cases  in,  disposed  of,  205. 

perplexities  of  plaintiff  in  instituting  suits  in,  277,  278 

new  facts  in  causes  before,  348-350. 

hearing  on  causes  in,  350. 

opinion  of  Story  in  cases  before,  360. 
CLINTON,  DE  WITT.     (See  Charles  Gliddeit  Haines.) 

COLLEGE   CAUSES  (five  civil  causes), 

Trustees  v.  Woodward,  trespass  on  the  case,  1. 

first  four  brought  to  test  validity  of  acts  of  June  27,  and  December  18 
and  26,  1816,  1. 

Allen  V.  College,  assumpsit,  3,  298-301. 

Hatch  V.  Lang,  ejectment,  3. 

Marsh  v.  Allen,  ejectment,  3. 

Pierce  v.  Gilbert,  ejectment,  3. 

criminal  prosecutions  fruitless,  3. 

what,  transferred  to  Washington,  201. 

technically  ended,  205. 

judgment  in  Allen  v.  Wheelock,  205,  301. 

many  papers  in,  destroyed,  249. 

abstract  of  defendant's  documents,  286-290. 

new  facts  in,  348-350. 
(See  Trustees  v.  Woodward  ;  Supreme  Court  op  The  United  States.) 
COLLEGE   CONTROVERSIES, 

war  of  the  newspapers  and  pamphleteers,  85,  86. 


4l8 


INDEX. 


COLLEGE  CONTROVERSIES  —  Continued. 

the  "sketches,"  their  authorship,  and  review  of  by  Dr.  Parish;  Judge 
Niles  replies  through  the  newspapers,  85. 

reply  to  sketches  by  Dewey,  Wheelock,  and  Gilbert;  vindication  of 
conduct  of  trustees  by  Marsh ;  reply  to  vindication  by  Freeman ;  an- 
swer to  vindication  by  Dunham,  86. 

become  a  political  issue,  102. 

contest  in  the  Legislature,  107-109. 

between  old  trustees  and  the  State,  125. 

full  history  cannot  be  written,  249,  250. 

CONGREGATIONALISTS, 

majority  of  the  people  of  New  Hampshire,  66. 
the  "standing  order,"  70. 

CONSTITUTION, 

of  New  York ;  provisions  in,  254,  255. 

of  New  Hampshire ;  tenure  of  provision  in,  337. 

of  some  of  the  States  require  judges  to  give  opinions  on  certain  occa- 
sions, 338. 

modified  by  dictum,  367. 

theory  of,  of  Great  Britain,  Russia,  United  States ;  view  of  Gouverneur 
Morris,  371. 

rule  of  interpretation,  371,  372. 

provision  in,  for  amendment,  372. 

Federal,  what  Marshall  made  it,  374. 

ratification  of,  378-381. 

CONSTITUTIONAL  CONVENTION, 

of  1787,  213,  214. 

proceedings  of,  214-217. 

discussions  in,  379-381. 
CONTINENTAL  CONGRESS, 

Dr.  E.  Wheelock  claims  that  the  royal  charter  was  ratified  and  con- 
firmed by,  62-64. 
CORPORATIONS, 

legislative  authority  over,  325-327. 

public  and  private,  355,  362,  433,  455. 

college  and  university,  362-367. 
COUNCIL  OP  REVISION  OF  NEW  YORK, 

action  of;  Kent's  opinions,  — their  nominal  basis,  254,  269,  270. 

established  by  old  Constitution  of  New  York,  268. 
COUNSEL, 

who  were  at  Exeter,  151-154. 

for  defendant  overmatched,  187. 

at  Washington ;  their  personal  relations  and  qualifications,  199-202,  207, 
229-247. 
COURTS  OF  LAW, 

power  to  set  aside  unconstitutional  acts,  224,  390-392. 


INDEX.  449 

DANE,  NATHAN, 

sketch  of;  ordinance  of  north-west  territory  framed  by,  213. 
contract  clause  in  ordinance  of,  213,  214. 

clause  in  ordinance  of;  foundation  of  obligation  clause  in  Constitution 
of  United  States,  213. 

DAKTMOUTH  COLLEGE, 

changes  proposed  in  charter  of,  and  bj'  whom,  10-15. 

location  of,  1,  87,  38. 

substitution  of  word  "college"  for  "academy,"   suggested   by  Whee- 

lock,  29. 
why  named  for  Dartmouth,  36,  37. 

charter  of,  gives  all  the  powers  and  privileges  of  a  university,  38,  60-63. 
object  of,  106. 

act  of  June  27,  1816,  to  enlarge  corporation  of,  118. 
address  of  faculty  and  officers  of,  after  their  removal,  137-140. 
purpose  of  incorporation  of,  439,  440. 

(See  Charter;  Foundation;  University.) 

DEED  OF  TRUST, 

Eleazar  Wheelock  to  board  of  trust  in  England,  48-52. 

DEWEY,  BENONI, 

(See  College  Controversies.) 

DRESDEN, 

college  district  three  miles  square,  so  named ;  president  of  college  had 

jurisdiction  over,  65. 
Gov.  Wentworth  advises  that  the  college  should  have  the  government 
of  the  town  where  it  stands,  according  to  the  English  custom,  87. 

DUVALL,  GABRIEL, 

dissents  from  opinion  of  Marshall  in  college  causes,  203,  302,  308. 
offers  Story  the  position  of  naval  officer  at  Salem,  333. 

EMIMET,  THOMAS  ADDIS, 

case  of;  Chancellor  Kent's  course  in  reference  to,  255,  250. 

EPISCOPALIANS, 

numerous  near  sea-coast ;  governor  and  majority  of  office-holders  were, 

66. 
Prof.  Hale's  case,  107. 

ESTOPPELS, 

doctrine  of  legal  and  equitable,  406-408. 

PAllRAR'S  REPORT, 

arguments  of  counsel  at  Exeter  and  Washington  contained  in,  174,  207, 

208,  285-298. 
publication  of,  pushed  forward  by  Webster,  205. 
Mason's  idea  as  to  what  it  should  contain,  285,  286. 
publication  of,  and  correspondence  in  relation  to,  290-296. 
Wheaton  follows  Farrar,  298. 

20 


450  INDEX. 

FARRAK,  TIMOTHY, 

sketch  of,  84. 

(See  Religious  Phase,  etc.  ;   Gilman,  John  T.  ;   Trtjstebs.) 
FEDERAIilST, 

indebted  for,  to  Hamilton,  379. 

FLETCHER  v.  PECK, 

second  opinion  in,  322. 
history  of,  400,  401, 
points  apparently  decided  in,  402. 
discussion  of,  402-405,  409. 
judgment  in,  rests  on  what,  403. 

FOUNDATION, 

theory  of,  358-362. 

of  Bowdoin,  358,  361, 

of  Dartmouth,  359,  361. 

position  taken  by  Hopkinson  in  his  brief  in  relation  to,  359,  360. 

of  Dartmouth  College,  discussion  of,  419-421. 

FREEMAN,  PEYTON  R. 

(See  College  Controversies.) 

GILBERT,  BENJAMIISr  J. 

(See  College  Controversies.) 

GELMAN,  GOV.  JOHN  TAYLOR, 

fast  friend  of  "VYheelock,  92. 

leading  Federalists  purpose  to  force  him  to  retire,  and  put  the  elder 

Farrar  in  his  place,  92. 
protests  against  the  removal  of  Wheelock,  100. 

GRANGER  CASES, 

importance  of  reasoning  in ;  counsel  in,  335. 

ground  relied  on,  437,  439. 

dissenting  opinions  in,  437-439. 

comparison  between  college  and  warehouses,  441. 

opinion  of  court  in,  441,  442. 

effect  of  doctrine  established  bj^  decision  in,  442. 

GRANTS, 

substitute  for  Landaff  grant ;  grant  of  nine  hundred  dollars,  8,  26. 

grant  of  township  six  miles  square,  8,  9. 

by  Gov.  B.  Wentworth;  by  Gov.  Dunmore,  20,  21. 

Gov.  J.  Wentworth  forfeits  Landaff;  promises  to  regrant  it  to  school, 
25,  26. 

by  Legislature  of  Vermont  to  Moor's  Charity-School,  and  to  the  col- 
lege, 44. 

Landaff  to  college,  53-55. 

to  college  and  to  Wheelock,  56-60. 

Wheelock  memorializes  Vermont  Legislature  for,  to  university,  62,  63. 


INDEX.  451 

HAINES,  CHARLES  GLIDDEN, 

argument  of,  in  Ogden  v.  launders,  206,  218,  219,  267. 
history  of  Emmet's  case,  by,  255. 
reference  to  Livingston,  257. 
sketch  of,  266-268. 

HALIFAX,  LORD, 

approves  of  design  for  royal  charter  for  charity-school ;  advises  incorpo- 
ration by  Connecticut  Assembly ;  promises  ratification  by  the  home 
office,  22. 

HAMILTON,  ALEXANDER, 

owe  to,  the  Federalist,  379. 
views  of,  379-381. 
influence  over  Marshall,  381. 
pitted  against  Jefferson,  381,  382. 
opposed  to  Adams,  382-384. 
death  of,  394. 

HANOVER, 

settlement  at,  and  vicinity  by  Wheelock  and  his  Connecticut  friends,  65. 

HATCH  V.  LANG, 

writ;  special  verdict;  taken  to  United  States  Supreme  Court,  3,  281- 

285. 
argument  in,  by  Austin,  251. 
decision  of,  by  Judge  Story,  276. 

HAVERHILL, 

half  shire  town  of  Grafton  County,  1. 

Trustees  v.  Woodward  entered  at,  in   Common  Pleas,  February  25, 

1817,  2. 
entered  at,  on  appeal  in  the  Superior  Court,  May  20,  1817,  2. 
(See  Arguments;  Dartmouth  College.) 

HOLMES,  JOHN, 

sketch  of,  228-231. 

his  mathematics,  230,  231. 

argument  at  Washington,  232,  233. 

argument  of,  written  out  and  reported,  295. 

HOPKINSON,  JOSEPH, 

sketch  of,  236. 

argument  of,  as  given  in  Farrar's  Report,  prepared  by  Webster,  295. 
discusses  question  of  foundation  of  Dartmouth  College,  359,  360. 
brief  of,  295,  359,  360. 

BIPEACHMENT, 

where  taken  from  by  the  fathers ;  views  of  Jefferson  in  relation  to,  372. 
farce  of,  374. 

INVESTIGATIONS, 

committee  of,  appointed  by  Gov.  Gilmaii ;  hearing  fixed  without  knowl- 
edge of  Wheelock ;  Wheelock  applies  to  Webster ;  Webster  fails  to 
appear,  88,  89. 


452  INDEX. 

INVESTIGATIONS  —  Continued. 

committee  of,  report;    report  of  committee  of,  laid  before  Legislature 
by  Gov.  Plumer,  194. 

(See  Memorial.) 

JAY,  JOHN, 

views  of,  346. 

JEFFERSON,  THOMAS, 

opinion  of,  as  to  inviolability  of  charters,  107. 

opposed  to  Hamilton,  381. 

antipathy  between,  and  Marshall,  384. 

-JOHNSON,  WILLIAM, 

sketch  of,  307-309. 

dissatisfied  with  Marshall's  practice,  311.   , 
dissents  in  Fletcher  v.  Peck,  312. 

instincts  of,  correct ;  discusses  obligation  clause,  312-315. 
concurs  in  judgment  in  College  cases,  409. 

dissenting  opinion  in  Fletcher  v  Peck  decisive  against  the  plaintiff  in 
Trustees  v.  "Woodward,  249. 

KENT,  JA:VIES, 

commends  opinion  of  Puchardson  and  concurs  in  conclusion,  192,  250. 
influence  of,  with   Johnson,   Clinton,  and  Livingston ;  ngi-ees  to  write 

Johnson's  opinion,  253,  256. 
receives  Webster's  argument,  etc.,  from  Marsh,  253. 
political  views,  254. 
partiality  of,  255. 
action  of,  in  Emmet's  case,  255. 
changes  his  opinion  because  of  alleged  new  view  of  facts  from  Webster's 

argument  in  College  causes,  263,  264. 
shrinks  from  consequences  of  doctrine  of  Supreme  Court  in  Sturges  v. 

Crowninshield,  807. 

(See  Albany  Conferences.) 

LAWYERS, 

eight  in  New  Hampshire,  1768  ;  not  consulted  by  Wheelock,  34. 

LEGAL-TENDER  CASES, 
question  in,  430,  431. 
decisions  in,  and  Marshall's  doctrine,  430-432. 

LEGISLATIVE  AUTHORITY, 

how  limited,  444. 

LEGISLATIVE  INTERFERENCE, 

policy  of,  7,  8. 

plan  of  John  Wheelock  and  Olcott;  right  of,  reserved  by  the  State  in 

substitute  for  LandatT  grant  and  grant  of  1807,  8. 
threats  of,  9. 

kind  of,  proposed  by  trustees  in  memorial,  9,  10. 
plan  of  Olcott  and  others  for,  10-12. 
Webster  opposes,  11-13. 
color  of  right  of,  15. 


INDEX.  403 


LEGISLATIVE  INTERFERENCE  —  Cow!!inMerf. 

Webster's  argument  in  Merrill  v.  Sherburne,  16. 
in  the  pig  case,  390-392. 

LETTERS, 

Adams  to  Farrar,  69,  70. 

Board  of  Trust  to  Wheelock,  40,  43. 

Brown  to  Farrar,  125,  145,  148,  281,  291,  295. 

Smith,  293. 

Webster,  264,  268,  271,  272. 
Daggett  to  Mason,  233. 
Dartmouth  to  Wheelock,  290. 
Farrar  to  Brown,  278. 

Smith,  283. 

Webster,  285. 
Gilman  to  Wheelock,  288. 
Holmes  to  Farrar,  295. 
Hopkinson  to  Brown,  304. 
Marsh,  274. 
Webster,  233. 
Jefferson  to  Johnson,  311,  384. 
Plumer,  107. 
Ritchie,  311. 
Rush,  319. 
Johnson  to  Jefferson,  308. 
Kent  to  Farrar,  243. 
Marsh,  262. 
Story,  370. 
Washington,  256. 
Livingston  to  Story,  305. 
Marsh  to  Farrar,  277,  279,  298,  301. 
Marshall  to  Story,  396. 
Mason  to  Marsh,  94. 

Plumer,  1,  23,  284. 

Smith,  194,  195. 

Storj^  293. 
Morris  to  Hills,  380. 

Ogden,  380,  381. 

Pickering,  380. 

Walsh,  380. 
Olcott  to  Smith,  127. 

Webster,  11,  12. 
Parker,  L,  to  Webster,  250. 
Parker,  W.,  to  Wheelock,  35. 
Plumer  to  Mason,  123. 
Prescott  to  Story,  305. 
Putnam  to  Farrar,  290. 
Smith  to  Brown,  129,  292,  350. 

Farrar,  282. 


454  INDEX. 

LETTERS  —  Continued. 

Smith  to  Olcott,  128. 

Phelps,  23,  24. 
Story  to  Bacon,  400. 
Duvall,  333. 
Farrar,  298. 
Fay,  308,  317. 
Martiueau,  400. 
Mason,  246,  368,  369. 
McLean,  400. 
Story,  W.  W.,  343. 
Wheaton,  242,  245,  347. 
Thompson  to  Adams,  89,  384. 

Farrar,  110,  126,  295. 
Olcott,  300. 
Smith,  193. 
Webster  to  Brown,  5,  6,  231,  236,  241,  270,  303,  349. 
Dunham,  91. 

Farrar,  243,  244,  295-297,  302. 
Chancellor  Kent,  153. 
Moody  Kent,  93. 
Mason,  6,  7,  209-211,  232,  236,  236,  238,  240,  243,  246,  303, 

304,  348,  349,  394. 
Olcott,  12,  13. 
Porter,  330. 

Smith,  5,  209,  210,  233,  235,  236,  238,  245,  303. 
Story,  192. 
Webster,  E.,  11,  302. 
Wentworth  to  Wheelock,  29,  37. 
Wheaton  to  Farrar,  296. 
Wheelock  to  Dartmouth,  36,  37. 
Phelps,  58,  59. 
Langdon,  27. 
Smith,  22. 
Webster,  88. 

Wentworth,  28,  29,  33,  290. 
Wirt  to  Carr,  234,  235,  241. 

Gilmer,  247. 
Wolcott  to  Ames,  335. 

LIBRARIES, 

Mason  advises  suit  for,  3 
difficulties  in  relation  to,  291,  292. 

LIVINGSTON, 

sketch  of,  456,  457. 

opinion  of,  in  Adams  -v.  Storey,  257-263. 

discusses  obligation  clause,  258. 

and  insolvency  laws,  259. 

views  in  Sturges  v.  Crowninshield  same  as  in  Aaams  v.  Storey,  262. 


iisDKX.  455 

LIVINGSTON  —  Continued. 

Story's  influence  over.  304,  305. 

refuses  to  give  his  opinion  in  Ti-ustees  v.  Woodward  to  the  reporter  for 
publication,  296. 
MAKBUEY  V.  MADISON, 

points  in  issue,  388. 

histor}'  and  statement  of  case,  386-388. 

Marshall's  opinion,  388,  389. 

extra-judicial  character  of  Marshall's  opinion  in,  392. 

real  issue  in,  393,  394. 
MAESH,  CHAELES, 

sketch  of,  83. 

argument  of,  155-166. 

conference  with  Parker,  252. 

(See  College  Controvehsies ;  Letters;  Trustees.) 
MAESH  ALL,  JOHN, 

shuts  off  reargument  in  Trustees  v.  Woodward,  203,  246. 

overthrows  doctrine  of  charitable  uses,  203. 

his  theory  of  government,  20fi,  207. 

in  the  Virginia  Convention,  denies  power  to  sue  a  State,  225,  374. 

sustains  doctrine  in  Sturges  v.  Crowninshield,  307. 

practice  of  entering  up  judgments  and  delivering  opinions,  310,  311. 

opinion  in  Trustees  v.  Woodward  and  Sturges  v.  Crowninshield,  on  obli- 
gation clause,  the  same,  315,  316. 

argument  of,  in  Fletcher  v.  Peck,  in  relation  to  grants,  370. 

doctrine  of,  as  affecting  amendments,  372-374. 

sketch  of,  374-378. 

hates  Jefferson,  384 

appointment  of,  as  cnief  justice,  384,  385. 

dissatisfaction  on  account  of  his  appointment,  385,  386. 

changes  his  meridian  to  that  of  Jay,  386,  394. 

what  Marshall  did,  and  did  not,  decide  in  Marbury  v.  Madison,  388,  389. 

changes  practice  in  the  Supreme  Court,  393. 

his  views  and  Lord  Mansfield's,  393. 

left  the  leader  of  his  party,  394. 

influence  of  Story,  Pinkney,  and  Webster  with,  394. 

reasons  of,  for  construing  obligation,clause  to  apply  to  conveyances  and 
grants,  409,  410. 

assumes  charter  to  be  a  contract,  412,  413. 

opportunities  of,  for  knowing  facts  in  relation  to  charter,  412. 

substitutes  "application"  for  "representation,"  413-415. 

his  statement  of  the  case  and  the  facts,  419-421. 

argument  of,  avoids  real  question,  423,  424. 

view  of,  in  Owings  v.  Speed,  427-429. 
(See  Letters;  Trustees  v.  Woodward;  Supreme  Couht  of  the  United 

States.) 
MAESH  V.  ALLEN, 

writ ;  verdict ;  taken  to  United  States  Supreme  Court,  3. 


456  INDEX. 

MASON,  JEREMIAH, 

advises  against  removal  of  Wlieelock;  his  reasons  therefor,  94-97. 
named  for  chief  justice,  but  declines,  123. 

made  sero:eant-at-law,  151,  152.  - 

points  and  argument  at  Exeter,  176,  177,  207.  "■ 

course  advised  by,  in  relation  to  causes  in  Circuit  Court,  278,  279. 
(See  Letters.) 
McFAKLAND. 

(See  Remonstrance;  Trustees.) 
MEMORIAL, 

of  Thompson,  Paine,  and  McFarland  to  Legislatureof  New  Hampshire; 

proposes  plan  for  amendment  of  charter,  9,  10. 
of  Dr.  John  Wheelock  to  New  Hampshire  Legislature,  87,  88. 
charges  against  trustees,  87. 
prayer  of,  granted,  and  committee  of  investigation  appointed  by  Gov. 

Gilman,  88. 
of  Eleazar  Wheelock  to  the  Vermont  Legislature,  60,  63. 
MOOR'S  INDIAN  CHARITY-SCHOOL, 

founded  by  Joshua  Moor ;  steps  taken  by  Wheelock  to  obtain  a  royal 

charter,  21. 
Wheelock  applies  to  Legislature  of  Connecticut  for  charter  for,  22,  23. 
subscriptions  for,  23,  29. 
Wheelock  sends  Occom  to  England  and  Scotland  to  solicit  funds  for ; 

about  twelve  thousand  dollars  raised  for,  by  Occom,  23,  415-417. 
English  funds  placed  in  hands  of  London  trustees ;  funds  for,  granted 

by  New  Hampshire,  Connecticut,  and  Massachusetts,  23. 
power  to  grant  charter  for,  discussed;  question  of  location ;  Wentworth 

agrees  to  give  LandafFto,  if  located  in  New  Hampshire,  25. 
location  of,  fixed ;  controversies  in  relation  to  location  of,  26. 
Wheelock  gathers  funds  for,  29. 

draft  of  charter  for  incorporation  of  academy;  "college"  may  be  sub- 
stituted for  academy,  29. 
subscriptions  for ;  when  and  how  payable ;  government  of,  39,  40. 
funds  collected  for,  kept  separate,  45. 
incorporated  by  New  Hampshire  Legislature,  45-47. 
donations  for,  secured  by  John  Wheelock,  47. 
a  preparatory  school ;  when  it  ceased  to  exist  as  a  distinct  institution ; 

president  controls  funds;  scanty  fund  still  exists,  and  Indians  have 

the  benefit  of  it,  47. 
charter  for,  framed  months  before  Wheelock  suggested  the  creation  of 

college  or  university,  419. 

(See  Grants;  Continental  Congress.) 

MORRIS,  GOUVERNEUR, 

discusses  obligation  question  in  Constitution  of  1787,  214,  215. 
favors  a  strong  central  government,  220. 
argument  in  case  of  Bank  of  North  America,  223-22-5. 
wrote  the  Constitution,  :180. 


INDEX.  457 

NEW  HAMPSHIKE, 

province  of;  created  when ;  claim  of  Massachusetts  to  a  portion  of,  20. 

NEW  HAMPSHIKE  KEPORTS, 

earlier  volumes  of,  how  made  up,  150. 

NELES,  NATHANIEL, 

student  of  Dr.  Bellamy,  68. 

inherits  Bellamy's  views;  becomes  trustee,  81. 

sketch  of,  82. 

(See  College  Controversies;  Trustees.) 

OBLIGATION  CLAUSE, 

did  not  establish  doctrine  of  State  suicide,  19. 
not  alluded  to  by  Parsons  in  his  argument,  174. 
construction  given  to,  if  wrong,  should  be  brought  in  review,  206. 
history  of,  apparently  unknown  to  Supreme  Court,  206. 
'  art.  1,  sect.  10,  of  the  Constitution  contains,  213. 

debates  in  relation  to,  in  Constitutional  Convention,  214-218. 

Judge  Wilson  its  probable  author,  217,  220-223. 

Wilson  and  Morris  had  special  reasons  for  knowing  raeaHing  of,  223. 

Judge  Wilson,  University  of  Pennsylvania  and  College  of  Philadelphia, 

225. 
meaning  of,  227,  397. 

view  of  meaning  of  words  of,  taken  by  Supreme  Court,  227. 
discussed  by  Livingston  in  Adams  v.  Storey,  260-262. 
and  Sturges  v.  Crowninshield,  305-307. 

true  construction  of,  must  be  determined  on  principle  at  last,  311,  312. 
discussion  of,  312-316,  326,  327,  403-410. 
distinction  between  "obligation"  and  "contract,"  312. 
object  of,  as  interpreted  by  Marshall,  Webster,  and  Story,  345. 
constitutional  provision,  397. 
logical  consequences  of  decisions  upon,  397. 
and  Fletcher  v.  Peck,  403. 
and  the  doctrine  of  estoppel,  406-410. 
applies  to  executory  contracts,  409,  424. 
American  doctrine,  425. 

why  it  should  apply  to  executory  contracts,  425. 
probable  view  of  the  framers  of  the  Constitution,  425,  426. 
effect  of  Marshall's  canon  of  interpretation,  427. 
Marshall's  opinion  and  the  power  of  Parliament,  427,  428. 
re-swing  of  the  legal  pendulum  after  extraordinary  construction  first 
given  to,-  144. 

OCCOM,  SAMSON, 

a  Mohegan  Indian ;  enters  Wheelock's  family ;  scholarship ;  becomes  a 
preacher  of  distinction,  21. 

(See  Moor's  Indian  Cuarity-School.) 
OLCOTT,  MILLS, 
sketch  of,  84. 
appointed  treasurer  by  old  board,  117. 


458  INDEX. 

OVEKSEEKS, 

board  of,  created,  109. 

names  of,  for  university,  111. 

members  of  board  of,  appointed;  meeting  of,  at  Hanover;  meeting  fails 

for  want  of  a  quorum,  112. 
action  taken  by,  114,  115. 
vacancies  in  board  of,  filled,  124,  141. 

PAINE,  ELUAH, 

sketch  of,  82,  83. 

(See  Remonstrance  ;  Trustees.) 
PAEKER,  WILLIAM, 

sole  legal  adviser  of  Gov.  Wentworth,  34. 
sketch  of,  35. 

PARSONS,  THEOPHILUS, 

sketch  of,  167,  168. 

argument  of,  168-174. 

does  not  allude  to  obligation  clause,  174. 

(See  Parsons  View.) 

PARSONS  VIEW, 

the,  108,  168-174. 

part  of  trustees,  with  Webster  and  Mason,  rely  on,  154. 
considered  charter  unalterable  by  Legislature,  174. 
PARTIES, 

Federal  and  Republican ;  difference  between,  378. 

PHILLIPS  V.  BURY, 

history  of,  363-367. 

opinion  of  Holt,  364,  365. 

in  the  House  of  Lords,  365. 

argument  of  Stillingfleet,  365-367. 

question  in  issue  in,  366. 

dictum    of  Holt  in,  relied  on  by  Story,  367. 

PIERCE  V.  GILBERT, 

writ ;  university  vouched  in ;  verdict ;  taken  to  United  States  Supreme 
Court,  3. 
PINKNEY,  WILLIAM, 

brought  into  the  college  causes,  202,  241. 

gives  notice  of  motion  for  reargument ;  closeted  with  Dr.  Perkins,  202. 

the  chief  justice  shuts  off  reargument  by,  203. 

meets  Webster  in  Bullard  v.  Bell,  204. 

Wirt  and,  on  bad  terms,  245,  246. 

sketch  of,  246-248. 

machinery  in  motion  that  was  to  render  efforts  of,  in  colleges  causes 

unavailing,  249. 
estimate  of,  by  IMarshall,  394. 

(See  College  Causes  ;  Trustees  v.  Woodward.) 

PLYMOUTH, 

half  shire  town  of  Grafton  Countv,  1. 


I 


INDEX.  459 

PLYMOUTH  —  Continued. 

Allen  V.  College  entered  at ;  questions  raised  at,  in  Allen  v.  College,  on 
one  point,  same  as  in  Trustees  v.  Woodward;  judgment  for  Allen,  4. 

PLUMER,  WILLIAM, 

governor  in  1812;  again  nominated ;  Webster's  opinion  of;  tolerant  in 

religion,  76. 
"Plumer's  Constitution,"  76,  77. 
services  of,  to  those  who  refused  to  pay  taxes  to  support  churches  to 

which  they  did  not  belong,  77,  78. 
reprimanded  by  Judges  Farrar  and  Wingate,  and  defies  them,  77. 
message  of  June,  1816,  77,  78,  105-107. 

policy  of,  in  appointment  of  officers  for  Dartmouth  University,  79. 
approves  act  for  taxation  of  clergy,  79. 
nominated  for  governor,  102. 
sketch  of,  103. 

message  of  December  5,  1816,  121,  122. 
liberality  of,  in  appointments,  122-124. 
message  of  November  20,  1816,  125. 

POMEROY'S  THEORY, 

keystone  of  the  arch  on  which  he  builds,  stricken  out  by  Marshall's 
opinion,  396. 

POTHEER, 

defines  the  term  "obligation,"  222,  223. 

PRESBYTERIANS. 

most  numerous  in  valleys  of  Merrimack  and  Connecticut ;  Wheelock  in 
his  later  years  a;  Wheelock  gathered  churches  of  that  order  about 
him ;  Wheelock's  reasons  for  preferring  Presbyterian  form  of  church 
government,  66,  67. 

PRESIDENTIAL  CONTEST, 
of  1801,  382-384. 

PROTEST, 

of  minority  against  passage  of  legislative  acts,  109. 
of  Gov.  Gilman  and  Judge  Jacob  against  the  removal  of  Dr.   John 
Wheelock,  100. 

PUBLIC  USE, 

doctrine  of,  relied  on  by  Waite  in  Granger  cases,  437. 
applies  to  elevators  and  colleges,  440-442. 
theory  of  regulation,  442,  443. 

REARGUMENT, 

Pinkney  prepares  for,  202,  203. 

counsel  for  college  and  court  aware  of  it,  202,  241,  245. 

Pinkney 's  grounds  for,  243. 

summarily  shut  ofi",  203,  244. 

views  of  counsel  for  old  trustees,  244. 


460  INDEX. 

KELIGIOUS  PHASE  OF  THE  CONTROVERSY. 

church  difficulties  at  Hanover;  charges  of  Rachel  Murch;  trial  of 
Samuel  Haze ;  Haze  convicted  by  the  sessions,  67. 

Haze  appeals  to  Grafton  Presbytery,  67,  68. 

found  guilty,  but  not  censurable ;  Wheelock,  the  trustees,  and  college 
church  become  involved  in  the  controversy ;  questions  of  church  gov- 
ernment and  discipline,  68. 

difference  in  opinion  between  Wheelock,  Shurtlelf,  and  others  in  rela- 
tion to  church  government ;  troubles  arose  in  form  from  this  differ- 
ence, 69,  70,  82. 

views  of  Judge  Crosby  and  Prof.  Adams,  69,  70. 

clergy  exempted  from  taxation,  70-80. 

people  compelled  to  support  church  to  which  they  did  not  belong,  72-75. 

constitutional  provisions  putting  all  sects  on  same  level  nullified,  73-75. 

subtle  distinctions  between  different  denominations  drawn  in  the  trial 
of  church  causes,  74. 

charge  of  Judge  Wingate  that  Universalists  and  Calvinists  are  same 
sect  or  persuasion;  Wingate's  views  shared  by  Judge  Farrar,  one  of 
the  trustees,  75. 

people  compelled  to  pay  tithes  or  be  ruined  by  litigation,  75. 

attempt  to  prohibit  any  one  from  holding  an  office  in  Dartmouth  Uni- 
versity except  Protestants,  78. 

freedom  of  religious  opinion  given  by  the  act  in  amendment  to  the 
charter,  78. 

(See  William  Plumer.) 

REMONSTRANCE, 

of  Thompson,  Paine,  and  McFarland,  of  June  19  and  24,  1816,  9,  10,  87, 
88,  107-109. 

RICHARDSON,  WILLIAM  M., 

appointed  chief  justice  of  the  Superior  Court  of  New  Hampshire,  123. 
sketch  of,  148,  149. 

opinion  of,  in  Trustees  v.  Woodward,  187-192. 

opinion  of,  extensively  circulated;  Webster's  view  of  opinion  of,  192. 
Kent  reads  opinion  of,  and  concurs  in  conclusions  reached  by,  192. 
,   assailed  for  taking  a  position  since  affirmed  by  the  Supreme  Court  oi 
the  United  States,  192,  193. 

SMITH,  JEREMIAH, 

made  serjeant-at-law,  151,  152. 
sketch  of,  152,  153. 
argument  at  Exeter,  178. 
Webster's  estimate  of,  153. 

(See  Letters  ;  Trustees  v.  Woodward.) 

SOVEREIGNTY, 

power  of  taxation,  one  of  the  attributes  of,  18,  19. 
attributes  of,  cannot  be  alienated,  19. 
of  State,  373,  374,  396. 


INDEX.  461 

SPECIAL  VERDICTS, 

difficulties  in  agreeing  upon,  193. 
agreement  for,  194. 
stipulations  sent  up  with,  195. 
drawn  by  Bartlett,  196-199. 
objection  by  Smith  to  Bartlett's,  199. 
finally  drawn  by  Smith,  199. 
what,  revised  by  Judge  Smith,  282,  283. 
views  of  Mason,  283-285. 

(See  Trustees  v.  "Woodward.) 
STANDING  ORDER, 

legislative  discrimination  in  favor  of,  75. 

(See  CONGREGATIONALISTS  ;   RELIGIOUS   PhASE,  ETC.) 

STORY,  JOSEPH, 

changes  his  judicial  base  ;  feeling  of  university  people,  239,  240. 

Hopkinson's  view  of  Story's  course,  274,  275. 

changes  his  political  base,  308.  809 

sketch  of,  328-335, 

labors  of,  329,  330. 

text-books,  330. 

practice,  330-332. 

feels  the  force  of  Federal  aristocracy ;  father  of,  331. 

political  views,  331-333. 

in  Massachusetts  Legislature,  334-336. 

appointment  of,  as  justice  of  the  Supreme  Court  of  the  United  States, 

335. 
relations  with  Gov.  Plumer,  336,  337. 

gives  Plumer  his  views,  and  the  anti-Federalists  act  on  them,  336-338. 
opinion  of,  on  "requisition"  question  —  holds  to   the  view    he    gave 

Plumer,  338,  339. 
struggle  with  Judge  Parker,  339-343. 
rebuked  by  Catron,  343,  344. 
doctrine  of,  overruled,  344. 
scatters  his  opinions  on  every  hand,  344. 
draws  his  inspiration  from  Jay,  346. 
national  ideas  of,  346-348. 
comments  of  his  son  on  his  opinion  in  Martin  v.  Hunter's  Lessee,  347, 

348. 
constitutional  studies  of,  348. 
reads  opinion  in  causes  before  Circuit  Court,  350. 
views  of,  in  College  causes,  where  found,  351. 
effect  of  his  decision,  351. 

doctrine  and  opinion  of,  in  Allen  v.  McKeen,  353-355,  358 
view  that  filling  an  office  is  a  contract,  overruled,  354. 
states  main  question,  355. 

theory  of  public  and  private  corporations,  355-358. 
novel  disposition  of  history  by,  356. 
distinctions  and  definitions  of,  in  relation  to  corporations  not  warranted, 

357,  358. 


462  INDEX. 

STORY,  JOSEPH  —  Continued. 

industry  of;  authorities  relied  on  by,  in  College  cases,  362. 

wi-ites  opinion  in  Charles  Kiver  Bridge  case  five  years  before  it  was 

decided,  368. 
object  of,  369. 

is  alarmed  by  decisions  of  Supreme  Court,  and  contemplates  resigning, 
399,  400. 
(See  Letters  ;  William  Plumer  ;  John  Marshall  ;  Trustees  v.  Wood- 
ward.) 

SUBSCRIPTIONS, 

for  carrying  on  controversy  raised  by  Webster,  199 

(See  Moor's  Indian  Charity-School.) 

SULLIVAN,  GEORGE, 

made  barrister-at-law,  152. 

sketch  of,  153,  154. 

argument  at  Exeter,  179-182. 
SUPREME  COURT  OF  THE  UNITED  STATES, 

attainments  of  the  present  judges;  lacks  unity  of  old  bench,  17. 

drifting  back  into  the  doubt  and  uncertainty  of  the  earlier  years  of  its 
existence;  a  bivouac  for  politicans  in  early  days;  the  country  has 
outgrown  the,  and  the  inevitable  result ;  defects  in  its  organization,  18. 

Trustees  v.  Woodward  carried  to,  193. 

argument  before,  200. 

judges  of,  unable  to  agree,  200. 

human,  like  other  tribunals,  206. 

position  of  judges  of,  in  Trustees  v.  Woodward,  249. 

framers  of  the  Constitution  did  not  intend  that  the  construction  of  that 
instrument  should  be  made  by ;  controlled  by  a  manufactured  public 
sentiment,  252. 

practice  of  delivering  opinions  in,  before  and  after  Marshall's  appoint- 
ment to  the  bench,  309,  310. 

primitive,  310. 

opinions  of,  on  constitutional  questions,  358. 

fruitless  experiment  of  imposing  restraints  upon,  by  constitutional 
amendments,  374. 

decision  of,  reversed  by  a  resort  to  arms,  374. 

business  of,  385,  386. 

doctrine  of  Marshall  and  his  court  modified  by,  399. 

progress  of,  443,  444. 

"in  the  end,"  must  be  governed  by  true  principles,  444. 

(See  Trustees  v.  Woodward;  Obligation  Clause.) 

TAXATION, 

legislation  in  relation  to,  70,  72,  79,  80. 
decisions  of  court,  71,  73,  74,  77. 
of  State,  373,  374. 

(See  Religious  Phase,  etc.) 

THOMPSON,  THOMAS  W., 

sketch  of,  83,  84. 


INDEX.  463 

THOMPSON,  THOMAS  W.  —  Cojitinued. 

comment  on  course  of,  90. 

(See  Letters;  Kemonstrance ;  Trustees.) 
THURMAN  BILL, 

constitutionality  of,  aflSrmed,  443. 

TRUSTEES. 

feeling  of  majority  towards  John  Wheelock,  10. 

mode  of  choosing  proposed  and  rejected,  13. 

plan  of  choosing  adopted,  14,  15. 

logical  consequences  of  plan  adopted  by,  15. 

London  opposed  to  incorporation,  27. 

provincial  ofncers  suggested  for  college,  30,  34,  36. 

first  meeting  of,  39. 

resolution  of,  in  relation  to  funds,  45. 

names  of,  81. 

determination  of,  to  put  down  "family  dynasty,"  69,  70,  85. 

remonstrance  of,  to  Wheelock's  memorial ;  their  views  of  charges,  87,  88. 

increased  to  twenty-one  by  Legislature,  110. 

names  of,  111. 

new,  appointed;  meeting  of,  at  Hanover,  112. 

action  taken  by  respective  boards,  113,  114. 

proceedings  of  old  board,  IIG,  117. 

application  by  governor  and  council  to  the  court  in  relation  to  filling 

vacancies  in  board  of,  119. 
memorial  of  1804,  of  old,  124. 
appointment  of,  124,  141. 
Wheeler  comes  to  rescue  of  old,  125. 
quandary  of  the  old  board,  125-132. 
meeting  of  new  board  at  Concord,  132. 
charges  against  old  board,  132-134. 
reply  of  old  board,  134-136. 
old,  fail  to  appear  and  are  removed,  136. 
old  board  take  possession  of  college  buildings,  205. 
old  board  of,  despondent,  250. 
old  board  desire  to  rely  on  decision  in  State  court  to  defeat  Allen,  298- 

301. 

(See  John  Wheelock.) 

TRUSTEES  V.  WOODWARD, 

writ;  declaration;  mandate,  1. 

attachment ;  formal  plea ;  entry  of  appeal ;  amendment ;  cause,  how  sub- 
mitted ;  where  and  by  whom  reported,  2. 
practical  result  of  final  judgment  in;  effect  of  decision,  16. 
question  for  American  people,  17. 
must  be  brought  in  review,  17. 
pleadings,  142,  143. 
argument  at  Haverhill,  143. 
agreement  of  counsel  in,  141,  145,  186. 


464  INDEX. 

TKUSTEES  V.  WOODWAKD  —  Continued. 
continued  to  September  term,  1817,  146. 
docket  entries,  150,  151. 
arguments  at  Exeter,  174,  176. 
references  of  counsel  in,  186. 
continued  for  advisement,  187. 
opinion  by  tlie  State  court,  187-192. 
taken  to  United  States  Supreme  Court,  193. 
special  verdict  in,  193,  196-199. 
writ  of  error  in,  drawn  by  Smith,  199. 
continued,  200. 

decision  of  Supreme  Court  in,  203. 

Webster  moves  for  judgment  nunc  pro  tunc  ;  motion  granted,  204. 
arguments  at  Washington,  207,  208,  238,  285,  298. 
circumstances  which  affected  decision,  264. 
"N.  Y.  and  N.  E."  gained,  271,  272. 
judges  who  sat  in,  802,  803. 
judgment  in,  302-304. 
Marshall  delivers  opinion  in,  302. 
position  of  other  judges,  303. 
"point  on  the  surfiice, "  395. 

opinion  of  Marshall,  411,  413-415,  419-421,  423,  424,  426-428. 
question  before  the  court,  428-430. 

decision  in,  compared  with  opinions  in  Granger  cases,  439. 
(See  College  Controversies;  Webster;  Counsel.) 

UNIVERSITY, 

protest  against  legislative  act  in  relation  to,  by  minority,  47,  109. 
institution  regarded  as  a,  by  Wheelock,  trustees,   and  Dr.  Belknap, 

60-63. 
trustees  and  overseers  appointed,  112, 

meeting  of  trustees  and  overseers,  and  action  taken  by  them,  112-115. 
powers  of  a,  in  mother-country,  under  a  charter,  433-435. 
(See  Dartmouth  College ;  Memorial.) 

WASHINGTON,  BUSHROD, 

Jefferson's  favorable  opinion  of,  319. 

sketch  of,  317-319. 

opinion  of,  in  Trustees  v.  Woodward,  319,  322. 

opinion  of,  in  Golden  v.  Prince,  320-322. 
WEBSTER,  DANIEL, 

his  gifts,  skill,  knowledge  of  men  and  the  court  at  Washington;  posi- 
tion he  supposed  Marshall  v/ould  take,  4. 

his  plan  for  getting  the  questions  properly  before  the  Supreme  Court  at 
Washington,  5-7. 

accepts  retainer  from  Wheelock,  but  fails  to  act,  86-89, 

reasons  therefor,  91,  92,  94. 

professional  relations  with  Wheelock  ended,  and  another  clause,  by  con- 
struction, added  to  the  Constitution  of  the  United  States,  94. 


INDEX.  465 

WEBSTER,  DANIEL  —  Continued. 

plans  of,  for  college  at  Concord  to  delay  legislative  action,  103,  104. 

made  barrister-at-law,  152. 

at  Exeter,  153. 

argument  and  peroration  at  Exeter,  186. 

main   point   relied  on  by,  not  before   court  at  time  of  argument  in 

Trustees  v.  "Woodward,  201. 
devises  means  to  get  cases  from  Circuit  Court  to  Washington ;  furnishes 

brief  to  Story,  201. 
three-fourths  of  argument  of,  at  Washington  on  questions  not  before  the 

court,  207. 
his  argument  at  Washington,  208. 
source  of  argument,  209-212. 

advised  of  Pinkney's  connection  with  College  causes,  233. 
Webster,  236,  237. 

portion  of  argument  of,  omitted  in  Earrar's  Report,  237. 
familiar  with  inner  workings  of  court,  240. 
his  reasons  for  pressing  causes  in  Circuit  Court,  241. 
(See  John  Wheelock ;  Investigation;  Letters;  Pinkney.) 
WENTWORTH,  JOHN, 

Dartmouth's  chief  benefactor ;  institution  should  have  borne  his  name ; 

his  name  for  institution  proposed  by  Wheelock,  36. 
intended  to  put  college  on  same  footing  as  universities   in  England, 

37,  60. 
Episcopal  views  of,  66. 

(See  Grants.) 
WHEELER,  JOHN  B., 

offers  one  thousand  dollars  with  which  to  test  rights  of  old  trustees,  125. 

WHEELOCK,  ELEAZAR, 

graduated  at  Yale ;  settled  at  Lebanon,  Connecticut ;  salary  ;  power  and 

zeal ;  opens  a  school,  21. 
narratives  of,  21,  22,  38,  39,  60. 

death;  will;  bequest  to  Moor's  Indian  Charity-School;  bequest  to  col- 
lege, 44. 
differences  between,  and  Dr.  Bellamy,  69,  81. 
position  of,  in  relation  to  funds,  416-419. 
(Bee  Moor's  Indian  Charity-School  ;  Dartmouth  College  ;  Memorial  ; 

Letters.) 
WHEELOCK,  JOHN, 

student  at  Yale ;  familiar  with  troubles  of  President  Clap,  8. 
succeeds  his  father  as  president  of  the  college  ;  holds  his  office  for  thirty- 
six  years ;  devotion  to  college  ;  intended  to  make  it  virtually  his  heir ; 
some  of  his  ciiaracteristics,  65. 
treatment  by  the  Federalists  and  "standing  order,"  76. 
inherits  his  father's  views,  81. 

supported  by  majority  of  trustees  till  1809 ;  no  friend  of  his  elected  to 
board  after  that,  84,  85. 

30 


466  INDEX. 

WHjSELOCK,  JOHN  —  Continued. 

proposes  to  institute  legal  proceedings  against  trustees ;  applies,  through 
a  friend,  to  Webster  for  professional  assistance ;  Webster  promises  it ; 
consults  him  personally,  86. 

retains  and  pays  him,  86-89. 

removal  of,  97-101. 

reasons  of  removal  assigned  by  trustees,  97-100. 

protest  of  Judge  Jacob  and  Gov.  Gilman  against  removal,  100. 

reinstated,  136. 

death  of;  gives  forty  thousand  dollars  to  university,  141. 
(See  Letters  ;  Presbyterians  ;  Trustees  ;  College  Controversies. 
WHIPPLE'S  TOLERATION  ACT, 

the  result  of,  the  seven  years'  war  with  the  standing  order,  75,  79. 

amendment  proposed  by  Whipple,  80. 
WILSON,  JAMES, 

knew  meaning  of  obligation  clause,  206,  214-217. 

probable  author  of  it,  217. 

sketch  of,  220. 

extract  from  lectures  on  "General  Principles  of  Law  and  Obligation," 
and  "Corporations,"  220-222. 

defines  a  "State,"  222. 

argued  case  of  Bank  of  North  America,  223,  224. 

made  professor  of  law,  225. 
WIRT,  WILLIAM, 

sketch  of,  234-236. 

on  bad  terms  with  Pinkney,  245,  246. 

(See  Letters.) 
WOODBURY,  LEVL 

sketch  of,  149,  150. 
WOODWARD,  WILLIAM  H., 

removal  of,  114,  116. 

appointed  secretary  and  treasurer  by  new  board,  114. 

demand  made  upon,  for  charter,  etc.,  116,  117. 

grounds  of  refusal  to  give  them  up,  117,  118. 

death  of,  258. 


TABLE   OF   GASES. 


Adams  v.  Storey, 

257 

Allen  V.  College, 

3.298 

Allen,  Marsh  v.,            3, 

282, 

283,  284 

Allen  V.  McKeen,    350, 

354, 

357,  3G2, 
39-3 

Andover,  Spaulding  v.. 

326 

Anonymous, 

74,  73 

Babcock,  Crease  v., 

430 

Bagg's  Case, 

159,  1G6 

Bank  of  North  America 

228 

Bank,  Osborn  v., 

356,  373 

Bank  v.  Sharp, 

437 

Baptist  Association  v.  Hart's 

Ex- 

ecutors, 

203,  412 

Bean,  Kelley  v., 

71 

Bevans,  United  States  v. 

> 

348 

Biddle,  Green  v., 

314 

Bingbampton  Bridge  Case, 

436 

Blackbird  Creek  Co.,  Wilson  v., 

388,  339 

Boston  Beer  Co.  v.  Massachusetts, 

443,  444 

Briscoe  v.  Bank, 

357, 

372,  399 

Brown  v.  Bank, 

185 

Brown  v.  Maryland, 

411 

Bullard  v.  Bell, 

204 

240,  394 

Bury,  Phillips  v.,     160, 

178, 

183,  317, 

324,  325, 

362 

363,  366 

Butler  V.  Pennsylvania, 

354 

Canter,  Insurance  Co.  v.,  403 

Charles  Kiver  Bridge  v.  "Warren 
Bridge,  246,  255,  316,  322,  324,  367, 
368,  369,  398,  399,  405,  405,  436,  444 
Charleston,  Murray  v.,  313,  443 

Chisholm  v.  Georgia,  225,  346,  348,  372 
Christy,  ex  parte,  342,  344,  392 


Cohens  v.  Virginia,  372,  389,  394 

Colchester  v.  Seaber,  166 

Cole,  Horn  v.,  406 

College,  Allen  v.,  3,  298 

Company  v.  Debolt,  305 

Cook  V.  Moffatt,  308 

Craig  V.  Missouri,  372,  433 

Crease  v.  Babcock,  430 

Crowninshield,  Sturges  v.,      203,  217, 
227,  240,  305,  306,  307,  314,  315,  316, 
320,  326,  396,  401,  409 


Davidson  v.  New  Orleans, 
Debolt,  Company  v., 

Earl  Ferrers,  Eex  v., 
Edwards  v.  Kerzey, 
Emerson,  Kittredge  v., 
Emmet's  Case, 


193 
303 


393 


206,  443 
342 
255 


Farrington  v.  Tennessee,  443 

Fletcher  v.  Peck,      131,  166,  180, 192, 

249,  312,  319,  322,  325,  370,  399,  400, 

401,  403,  404,  406,  409,  421,  422,  424, 

425,  427,  429,  436,  444 

Foster,  ex  parte,        341,  342,  343,  444 

French,  Kidder  v.,  71 


Georgia,  Chisholm  v.,     225, 

Gibbons  v.  Ogden,    386,  396, 
Gilbert,  Pierce  v.,         3,  282, 
Gilman  v.  Philadelphia, 
Golden  V.  Prince, 
Granger  Cases,  435,  436,  438, 

Green  v.  Biddle, 
Griswold,  Hepburn  v., 
Guestier,  Hudson  v.. 


346,  348, 
372 

399,  411 

283,  284 
399 
320 

439,  443, 
444 
314 
40O 
GIO 

(4.07) 


4G8 


TABLE    OF    CASES. 


Haile,  Mason  v.,  306 

Hart's  Executors,  Baptist  Associ- 


ation  v., 

203 

412 

Hatch  V.  Lang, 

3,  282, 

283 

Hepburn  v.  Griswold, 

430 

Hicks  V.  Hotchkiss, 

307 

Horn  V.  Cole, 

406 

Hudson  V.  Guostier, 

310 

Hunter's  Lessee,  Martin  v. 

> 

347 

Illinois,  Munn  v. 

438, 

439 

Insurance  Co.  v.  Canter, 

403 

206, 

443 

71 

166, 

182 
342 

340, 

341, 

342 
425 

3, 

282, 

283 
166 
430 
166 

Jackson  v.  Steamboat  Magnolia,     366 
Jenness,  Peck  v.,  444 


Keliey  v.  Bean, 
Kerze}-,  Edwards  v., 
Kidder  v.  Frencb, 
King  V.  Pasmore, 
Kittredge  v.  Emerson, 
Kittredge  v.  Warren, 

Lane  Countj'  r.  Oregon, 
Lang,  Hatch  v., 
Larwoad,  Rex  v., 
Legal-Tender  Cases, 
Lutterell's  Case, 


Marbury  v.  iMadison,      207,  308,  386, 
389,  392,  393 
Marsh  v.  Allen,  3,  282,  283,  284 

Martin  v.  Hunter's  Lessee,  347 

Martin  v.  Mott,  339,  341 

Maryland,  Brown  v.,  411 

Massachusetts,  Boston  Beer  Co.  v., 

443,  444 
Massachusetts,  Rhode  Island  v.,  306 
Mason  v.  Haile,  306 

Matthewson,  Satterlee  v.,  319 

Mayor  v.  Miln,  399 

McCulloch  V.  Maryland,  358,  411 

McKeen,  Allen  v.,  350,  354,  357,  362, 

396 
Merrill  v.  Sherburne,  16 

Milton  V.  Spateman,  166 

Missouri,  Craig  v.,  372,  433 

Moffatt,  Cook  v.,  306 


Moore  v.  Poole,  71 

Moore  v.  Robbins,  313 

Munn  V.  Illinois,  438,  439 

Murray  v.  Charleston,  313,  443 

New  Jersey  v.  Wilson,  166 

New  Jersey  v.  Yard,  443,  444 

New  Orleans,  Davidson  v.,  193 

North  America,  Bank  of,  223 

Ogden,  Gibbons  v.,  386,  396,  399,  411 
Ogden  V.  Saunders,  203,  218,  257,  266, 
267,  306,  307,  314,  316,  326,  345,  395, 
396,  399,  411,  422,  424,  431,  444 
Oregon,  Lane  County  v.,  425 

Osborn  v.  Bank,  356,  373 

O  wings  V.  Speed,  427,  429 

Pasmore,  King  v.,  166,  182 

Pawlet,  Society  v.,  404 

Peck  V.  Jenness,  344 

Peck,  Fletcher  v.,     131,  166,  180,  192, 

249,  312,  322,  325,  370,  399,  400,  401, 

403,  404,  406,  409,  421,  422,  424,  425, 

427,  429,  436,  444 

Pennsylvania,  Butler  v.,  354 

Philadelphia,  Gilman  v.,  399 

Phillips  V.  Bury,      160,  178,  183,  317, 

324,  325,  362,  363,  386 

Pierce  v.  Gilbert,  3,  282,  283,  284 

"Pig  Case,"  391 

Poole,  Moore  v.,  71 

Prince,  Golden  v.,  320 

Rex  V.  Earl  Ferrers,  393 

Rex  V.  Larwoad,  166 

Rex  V.  Richardson,  166 

Rhode  Island  v.  Massachusetts,  306 

Robbins,  Moore  v.,  313 

Robbins  v.  Shaw,  306 

Satterlee  v.  Matthewson,  319 

Saunders,  Ogden  v.,  206,  218,  257,  266, 
267,  306,  307,  314,  316,  326,  345,  395, 
396,  399,  411,  422,  424,  431,  444 
Scott  V.  Sandford,  374 

Seaber,  Colchester  v.,  166 

Sharp,  Bank  v.,  437 


TABLE    OF    CASES. 


4()9 


Shaw,  Robbins  v.,  306 

Sherburne,  Merrill  v.,  16 

Society  v.  Pawlet,  404 

South  Ottawa  Bond  Case,  444 

Spateman,  Milton  v.,  166 

Rpaulding  v.  Andover,  326 

Speed,  Owings  v.,  427,  429 

Steamboat  Magnolia,  Jackson  v.,   356 
Stone  V.  Wisconsin,  489 

Storey,  Adams  v.,  257 

Sturges  u.  Crowninshield,       203,217, 
227,  240,  305,  306,  307,  314,  315,  316, 
320,  326,  396,  401,  409 
Sutton's  Hospital,  359 

Tennessee,  Farrington  v.,  443 

Terrett  v.  Taylor,     186,  325,  395,  404 

Texas  v.  White,  425 

Trustees  v.  Woodward,  1,  16,  125,  127, 

145,  151,  187, 193,  200,  201,  206,  216, 

217,  227,  228,  229,  233,  238,  244,  249, 

250,  284,  292,  298,  302,  305,  326,  848, 

350,  353,  354,  355,  356,  358,  369,  395, 

398,  399,  404,  409,  411,  413,  422,  423, 

427,  429,  433,  435,  436,  437,  439,  440, 

442,  443,  444 


United  States  v.  Bevans, 
Virginia,  Cohens  v. 


348 
372,  389,  394 


Walker  v.  Whitehead,  397 

Warren    Bridge,   Charles    River 
Bridge  v.,        246,  255,  316,  322,  324, 
367,  368,  369,  396,  399,  405,  406,  436, 

444 
Warren,  Kittredge  v.,  340,  341,  342 
White,  Texas  v.,  425 

Wilson  V.  Blackbird  Creek  Co., 

386,  399 

Wilson,  New  Jersey  v.,  166 

Wisconsin,  Stone  v.,  439 

Woodward,  Trustees  v.,1, 16, 125, 127, 

145,  151,  187,  193,  200,  201,  206,  216, 

217,  227,  223,  229,  233,  238,  244,  249, 

250,  284,  292,  298,  302,  305,  326,  348, 

350,  358,  354,  355,  356,  358,  369,  395, 

398,  399,  404,  409,  411,  413,  422,  423, 

427,  429,  433,  435,  436,  437,  439,  440, 

442,  443,  444 

Yard,  New  Jersey  v.,  443,  444 

Zacharie,  Boyle  v.,  306 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  858  149 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


OCT  3   74^ 


oC\ 


^W^ 


#' 


8 


Form  L9-Series4939 


